____________________________ December 18, 1997 ____________________________ GSBCA 13895-RATE In the Matter of TRI-STATE MOTOR TRANSIT CO. Robert D. Norcom, Auditor, Tri-State Motor Transit Co., Joplin, MO, appearing for Claimant. Jeffrey J. Thurston, Director, Office of Transportation Audits, General Services Administration, Washington, DC, appearing for General Services Administration. Col. James F. Quinn, Staff Judge Advocate, Headquarters, Military Traffic Management Command, Department of the Army, Falls Church, VA, appearing for Department of Defense. HYATT, Board Judge. Tri-State Motor Transit Company claims that it is owed an additional $574.79 in connection with its transportation of a shipment under Government bill of lading (GBL) G-0,490,568. The substance of Tri-State's claim is two-fold. First, Tri-State claims that the freight shipped should have been identified as a missile guidance control system, which was not eligible to be shipped under Tri-State's tender 0763. Thus, Tri-State argues that it is entitled to the higher public tariff rate. Second, Tri-State claims that the GBL and terms of its tariff, read together, requested exclusive use of the vehicle, which was provided by Tri-State. Background On March 19, 1993, GBL G-0,490,568 was issued for the transport of a shipment described as "Radio Transmitting and Receiving Sets NMFC 62820 SUB1" from the Naval Weapons station in Yorktown, Virginia to the Raytheon Company in Bristol, Tennessee. The GBL listed the applicable rates as TSMT 0763, a Tri-State tender rate offered to the Department of Defense (DOD) under 49 U.S.C. 10721 (1994). Tri-State transported the cargo a distance of 398 miles and delivered it to Raytheon on March 23, 1993. On March 31, 1993, Tri-State submitted a bill in the amount of $566.25 and was paid in that amount. On March 31, 1996, Tri- State submitted a supplemental bill in the amount of $574.29. Tri-State asserted in its supplemental bill that its tender 0763 did not apply to the commodity actually shipped by DOD since that commodity was actually a guidance control system which should have been classified under DOD Unique Commodity Code (DODUC) 14255. After initially rejecting this claim for lack of proof, GSA subsequently determined, upon receiving further documentation, that this claim is valid. A Certificate of Settlement, allowing this portion of the claim in the amount of $99.54, has been issued. Still pending before us is Tri-State's claim for additional compensation for providing exclusive use of the vehicle. Tri- State's basis for this claim is that its tariff stated that application by the shipper of a lock requiring the use of mechanical means to break the seal is considered a request for exclusive use. The GBL, in block 24, under the heading "seal numbers" shows the annotation "U.S. DISC: 0813248, 249." Tri- State maintains that this annotation signifies usage of a lock requiring mechanical means to break the seal. In addition, Tri- State has furnished a copy of its tractor continuity report demonstrating that exclusive use of the vehicle was in fact provided. Discussion On the date that the GBL was issued, Tri-State's Tariff ICC TSMT 4001, Item 470-1, paragraph 4, provided as follows: The use of any method of sealing a dromedary box or 410 container, i.e.: bolt seals, padlocks, cable locks, ball type locks, wire twists, etc., which require the use of mechanical means to break that seal will be considered as a request for exclusive use irregardless of any notation on the bill of lading. . . . The GBL confirms that the shipper applied a lock with the prefix "U.S. DISC." Tri-State maintains that this prefix is used by the Department of Defense for a type of cable lock seal that can only be broken by mechanical means. In an earlier decision on point, the Board was provided with an affidavit in which a Tri-State scheduler attested that this prefix has consistently been associated with a cable lock which, when sealed, may be opened only by mechanical means. In the absence of any evidence to the contrary from GSA or the Military Traffic Management Command (MTMC), the Board accepted the statements in this affidavit. Tri-State Motor Transit Co., GSBCA 13886-RATE, 97-1 BCA 28,941. This case involved the identical tariff. The Board ruled in GSBCA 13886-RATE that the language of the tariff, together with the application of a cable lock, constituted a request for exclusive use even in the absence of explicit language on the face of the GBL referring to exclusive use. The same result is dictated here. Tri-State has furnished satisfactory evidence that exclusive use of the vehicle was provided. Accordingly, Tri-State is entitled to recover the amount claimed for providing exclusive use of the vehicle. ____________________________ CATHERINE B. HYATT Board Judge