November 4, 1997 GSBCA 14120-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. GOODMAN, Board Judge. On June 22, 1993, Government bill of lading (GBL) G- 0,917,692 was issued to Tri-State Motor Transit Company (Tri-State). This GBL described the freight being transported as Rocket Motor, Class B Explosive. The shipper included the following notation on the GBL: SHIPPER SEAL(S) APPLIED. CARRIER MAY REMOVE SEAL(S) AND REPLACE WITH EQUIVALENT SEAL(S) ON PRIOR CONSENT OF CONSIGNOR. CARRIER MUST ANNOTATE SEAL CHANGES ON GBL. APPLICATION OF SHIPPER SEAL(S) DOES NOT CONSTITUTE A REQUEST FOR EXCLUSIVE USE OF VEHICLE. Claimant asserts that this notation on the GBL is a request for exclusive use. Claimant submitted a claim to the General Services Administration (GSA) Office of Transportation Audits (OTA) for a balance due of $806.25. By settlement certificate dated December 6, 1996, GSA OTA disallowed the claim, stating: You are claiming exclusive use. We do not agree. According to the GBL, no annotation on the GBL request[ed] nor provided exclusive use. Claimant requests review of the denial of its claim for $806.25 for alleged "exclusive use" service. Discussion Claimant relies upon the decision in Baggett v. United States, 23 Cl. Ct. 263 (1991), aff'd 969 F.2d 1028 (Fed. Cir. 1992). 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. With regard to the first condition, substantial compliance with the requirements of the tariff for exclusive use, the court interpreted language on a GBL similar to the "prior consent" statement contained in claimant's GBL in conjunction with the applicable tariff and determined that such language constituted a request for exclusive use. Accordingly, we must review the language in claimant's GBL and applicable tariff. The language at issue in the Baggett case reads as follows: SHIPPER SEALS APPLIED. CARRIER MAY REMOVE SEALS AND REPLACE WITH EQUIVALENT SEALS ON PRIOR CONSENT OF CONSIGNOR. IF SEALS ARE BROKEN IN EMERGENCIES, NOTIFY CONSIGNOR AS SOON AS POSSIBLE. CARRIER MUST ANNOTATE SEAL CHANGES ON GBL. APPLICATION OF SHIPPER SEALS DOES NOT CONSTITUTE A REQUEST FOR EXCLUSIVE USE OF VEHICLE/ CONTAINER. This language is substantially the same as that which appears on the GBL at issue, with the addition of the second sentence, which does not appear on claimant's GBL. In discussing the applicable tariff language in the Baggett case, the court stated: [T]he tariff states that "[a]ny notation which in any way limits or denies carrier access to the Dromedary or 410-Container truck or semi-trailer (as the case may be), shall be deemed by the carrier to require exclusive use and the charges named in paragraph 1 of this item shall be assessed." . . . As stated repeatedly, the contractual relationship between carrier and shipper is defined by the tender and incorporated tariff, representing the offer, and the GBL and its annotations, representing the acceptance. Starflight, Inc., B-218844, 65 Comp. Gen. 84 (1985). This court finds that the prior consent statement at least in some way denies the carrier access to the dromedary. The plain language of the annotation states that the carrier may remove the seals only with the consent of the shipper. See Fort Vancouver Plywood Co. v. United States, 860 F.2d 409, 413 (Fed. Cir. 1988) (applying the plain language analysis of contract interpretation); George Hyman Construction Co. v. United States, 832 F.2d 574, 579 (Fed. Cir. 1987) (stating that the words of an unambiguous contract should be "given their plain and ordinary meaning"). The prior consent statement standing alone does not constitute a request for exclusive use; however, read in conjunction with a tariff stating that an annotation is a request for exclusive use if it in any way denies the carrier access, the prior consent statement reasonably apprises the carrier that exclusive use is requested and constitutes a request for exclusive use in "substantial compliance" with the terms of the tariffs in the Whitten and Tri-State cases. The government argues, however, that exclusive use was not properly requested on the GBLs as required by 41 C.F.R.  101-41.302-6(a), the exclusive provisions of the GBLs and the MTMR, as well as by Dual Driver Protection Service provisions in effect with respect to many of the shipments. The government contends that exclusive use was not requested because it was not explicitly requested on the bill of lading by the shipper. This court recognizes, however, that "[i]t was not intended that form rather than substance would govern the transaction. If there appears on the bill of lading some written notation, which reasonably apprises the carrier that the shipper is requesting the exclusive use of its vehicle, we think this is sufficient compliance with the requirement for making the exclusive use rates applicable." Campbell ["66" Express, Inc. v. United States, 157 Ct. Cl. 365, 302 F.2d 270 (1962)], 157 Ct. Cl. at 370-71, 302 F.2d at 272. . . . As in the American Farm Lines[, Inc., B-203805, et al. (Dec. 24, 1981)] case, where exclusive use was found because of substantial compliance despite the fact that the words "exclusive use of vehicle" did not appear on the GBL, this court holds that the prior consent statement substantially complied with the terms of the tariffs in the Whitten and Tri-State contracts and that exclusive use was requested in those cases. 23 Cl. Ct. at 273. Claimant's tariff contains the following language: When a shipper requests exclusive use of an entire Dromedary for a less-than-truckload shipment, charges will be assessed subject to a minimum weight of 5,000 pounds or actual weight, if greater at the 5,000 pound rate. When a shipper requests exclusive use of an entire 410- container for a less-than-truckload shipment, charges will be assessed subject to a minimum weight of 10,000 pounds, or actual weight if greater, at the 10,000 pound rate. Any notation which in any way limits or denies carrier access to the Dromedary or 410-Container, truck or semi-trailer (as the case may be), shall be deemed by the carrier to require exclusive use and the charges named in paragraph 1 of this item shall be assessed. Thus, in the instant case, the first condition is met. The language in claimant's GBL and tariff are substantially similar to that at issue in the Baggett decision. The court found that the "prior consent language," standing alone, did not constitute a request for exclusive use, but did so when read in conjunction with the tariff stating that an annotation is a request for exclusive use if it in any way denies the carrier access. Accordingly, the language at issue in claimant's GBL denies the carrier access, even though it contains the statement, "APPLICATION OF SHIPPER SEALS DOES NOT CONSTITUTE A REQUEST FOR EXCLUSIVE USE OF VEHICLE/ CONTAINER." When read in conjunction with the tariff, it is a request for exclusive use. 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