October 30, 1997 GSBCA 13922-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, Department of the Army, Headquarters, Military Traffic Management Command, Falls Church, VA, appearing for Department of Defense. GOODMAN, Board Judge. On May 27, 1993, Government bill of lading (GBL) G-2,945,917 was issued to Tri-State Motor Transit Co. (Tri-State). This GBL described the freight being transported as "powder, smokeless" and "ammo/explo/firewks." In block 24, under the heading "seal numbers," the GBL contains the annotation "0750504/075012." The GBL also contains the following annotation, among others: FLAME OR HEAT PRODUCING TOOLS WILL NOT BE USED TO REMOVE SECURITY DEVICES. The GBL also notes that this shipment was a foreign military sales shipment. The GBL contained the annotation "Dual driver protection service (DD) requested. Signature and tally record (DD Form 1907) furnished to carrier." Block 2 of the Signature and Tally Record, entitled Protective Service Requested, contains the typewritten annotation "dual driver protective service." Tri-State submitted a freight bill to the Department of Defense (DoD) on June 2, 1993, for transporting this shipment. Thereafter, Tri-State claimed that it was owed an additional amount of $460.39 because it furnished and was not paid for dual driver protection service and because DoD requested, and Tri- State allegedly provided, exclusive use of the container that Tri-State used to transport the shipment. The claim for dual driver protection service was $57.42; the claim for exclusive use was $402.97. On October 2, 1996, the General Services Administration (GSA) denied Tri-State's claim in its entirety, stating on the Settlement Certificate: The statement "Flame or Heat Producing Tools will not be used to remove security devices" does not constitute a request for exclusive use. On October 16, 1996, Tri-State requested this Board to review GSA's denial of its claim. In its request to the Board, Tri-State stated: Firstly, claimant stated as its Basis for Claim: "To correct DD (MTMC [Military Traffic Management Command] abbreviation for Dual Driver Service) charge. GSA's Settlement Certificate did not address this Basis for Claim. Additionally . . . GSA alleges that no specific request for exclusive use was made by the shipper. . . . Claimant hereby adopts the same presentation to counter GSA's statement as presented in GSBCA 13747- RATE as regards the notation "Flame or heat producing tools will not be used to remove security devices," related to the terms of claimant's tariff provisions. Discussion Dual Driver Service GSA does not address claimant's claim for dual driver protective service in its settlement certificate. On the face of the GBL and supporting documentation, there is clear indication that such service was provided, and no rebuttal was offered by GSA. Accordingly, the claim in the amount of $57.42 for this service is granted. Exclusive Use The identical issue raised in this case was discussed at length in this Board's decisions in Tri-State Motor Transit Co., GSBCA 13737-RATE, 97-1 BCA  28,945, and Tri-State Motor Transit Co., GSBCA 13747-RATE (Oct. 30, 1997). The latter decision is being issued concurrently with this decision. We will not repeat the discussion contained in those decisions as to the applicable regulatory provisions. The applicable tariff in this case, Tariff ICC TRM 4001, contained the following language in Item 470-1, paragraph 4, identical to the applicable tariff language in Tri-State Motor Transit Co., GSBCA 13747-RATE: 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 . . . . Claimant has submitted evidence that a cable lock was used to seal the dromedary box, and GSA does not dispute this. However, GSA contends that exclusive use was not requested, as evidenced by the fact that the GBL contains a notation "LTL," less than truckload, and that there is "no specific statement on the face of the contract requesting exclusive use." GSA further alleges: When the Government accepted the tariff, it was subject to a clear notation on the GBL. Thus to read the two provisions of the carrier's cited tariff and the GBL together, it is clear that if a cable lock is used, it must be accompanied by a written annotation on the GBL requesting exclusive use. This is the ruling in Baggett Transportation Co. v. U.S., 969 F.2d 1028, 1033 ([Fed.Cir.] 1992), . . . the application of seals, cable lock seals or other locks, unaccompanied by a written notation which reasonably apprises the carrier that the shipper is requesting exclusive use, does not constitute exclusive use. The fact that the shipper designated the shipment as "LTL," less than a truckload, is not an explicit rejection of exclusive use. It is merely an indication that the contents will not occupy an entire truckload. GSA also misreads the Baggett decision, and the underlying decision by the Court of Claims, Baggett v. United States, 23 Cl. Ct. 263 (1991). As the trial court explained in Baggett, in order to apply exclusive use rates, there are two conditions that must be met. First, there must be substantial compliance with the requirements of the tariff concerning a request for exclusive use. Second, there must be some evidence to establish that exclusive use was actually provided. The underlying claims dealt with contractual agreements that required, when a cable lock was used, a written annotation on the GBL requesting exclusive use, hence the ruling that a "written annotation" was required. The decision was based upon interpretation of the contractual agreement between the parties. In the instant case, the clear and unambiguous language of the tariff states that the application of the type of lock which was applied here "will be considered as a request for exclusive use irregardless of any notation on the bill of lading." Claimant emphasizes that the language in its tariff was purposely added . . . to overcome the decision in the Baggett case and to clearly establish by tariff rule that the act of applying a lock or security device (other than an ordinary seal) to carrier's equipment would constitute a request for exclusive use "irregardless of any notation on the bill of lading" and to unambiguously and clearly put to rest any further legal question in that regard. As there is no dispute that a cable lock was provided, based upon the requirement of the tariff, the use of the cable lock constitutes a request for exclusive use. Therefore, the first condition for applying exclusive use rates is met. With regard to the second condition for applying exclusive use rates, i.e., that exclusive use was provided, Tri-State has provided records that it generates to record information about its shipments. These records show, for example, the route and distance traveled by a shipment, the number of the trailer used to haul the shipment, the position of a shipment on a trailer, the names of the tractor drivers, etc. These records also show whether a container held more than one shipment. The records relevant to this case show that the shipment at issue here was transported in its own container. In other words, this shipment had exclusive use of the dromedary, according to Tri-State's records. Tri-State's records establish that it provided exclusive use, and so the second condition for applying exclusive use rates is met. Tri-State is entitled to be paid for providing exclusive use for this shipment. ___________________ ALLAN H. GOODMAN Board Judge