Board of Contract Appeals General Services Administration Washington, D.C. 20405 April 24, 1998 GSBCA 14331-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. Colonel James F. Quinn, Staff Judge Advocate, Headquarters, Military Traffic Management Command, Department of the Army, Falls Church, VA, appearing for Department of Defense. DANIELS, Board Judge (Chairman). On October 17, 1990, the Department of Defense issued to Tri-State Motor Transit Co. a Government bill of lading (GBL) under which the carrier was to move a shipment of class A explosives (blasting caps) from Ireco Incorporated in Port Ewen, New York, to the Military Ocean Terminal, Sunny Point, in Southport, North Carolina. The GBL identified the goods as a foreign military sales shipment and said that they were to be transported in a "dromedary"[foot #] 1 under authority of Tri-State's tariff ICC TSMT 4000. After the Government paid charges identified on Tri-State's invoice, the carrier filed two claims -- one "primary" and one "alternative" -- that additional charges are due. The General Services Administration's Office of Transportation Audits (GSA) denied both claims. Tri-State seeks our review of GSA's determination on the alternative claim. ----------- FOOTNOTE BEGINS --------- [foot #] 1 A "dromedary," according to a Tri-State tariff, is "(1) a container which is mounted on the power unit (truck- tractor) behind the cab of the power unit; or (2) a container carried on a flat bed or drop deck trailer and which is fastened to the trailer in a safe and approved manner." Tri-State Motor _______________ Transit Co., GSBCA 13886-RATE, 97-1 BCA 28,941. ___________ ----------- FOOTNOTE ENDS ----------- Now that Tri-State has abandoned its primary claim, the carrier, GSA, and the agency for which this shipment was transported all agree (for the purpose of this case) that tariff ICC TSMT 4000-B governs charges for the carrier's services. The blasting caps (and associated pallets) weighed 427 pounds. Tri- State assessed a mileage commodity rate charge of $697 for moving them, and the Government paid this amount. This charge was the appropriate amount, per ICC TSMT 4000-B (as in effect on the date of shipment), for hauling a load weighing a minimum of 2,500 pounds the distance involved here. In the claim now before us, Tri-State maintains that it should have been paid an additional $697 -- the proper charge under this tariff for a load weighing a minimum of 5,000 pounds. The carrier bases its demand on two separate theories: (1) The tariff provides, "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." Tri-State believes that in this GBL, the shipper requested exclusive use. (2) The shipment is subject to a charge for 5,000 pounds minimum weight because it contained "initiating explosive devices." The Government contests both of Tri-State's theories. As to exclusive use, the Department of the Army's Military Traffic Management Command (MTMC) maintains that Tri-State "should have realized that there was an inconsistency between its tariff provision . . . and the annotation on the GBL. By failing to alert the shipper to the inconsistency, Tri-State deprived the shipper of the opportunity to correct the problem. Tri-State should not be allowed to profit from a failure to execute its responsibility." As to the contents of the shipment, GSA contends that "no documentary evidence has been presented as proof that this shipment contained initiating explosives." As previous case law makes clear, Tri-State is correct on the exclusive use issue. The carrier is consequently entitled to be paid for its services at the mileage commodity rate for a shipment weighing 5,000 pounds. Whether class A explosives (blasting caps) are "initiating explosive devices" or not would have no impact on our conclusion that Tri-State is entitled to the extra amount it claims. A resolution of this matter is consequently immaterial to this case, so we do not discuss the matter further. Tri-State tariff ICC TSMT 4000-B, as in effect on the date of this shipment, included this provision: When a shipper inserts the following notation on the bill of lading: "DO NOT BREAK SEALS EXCEPT IN CASE OF EMERGENCY OR UPON PRIOR AUTHORITY OF THE CONSIGNOR OR CONSIGNEE. IF FOUND BROKEN OR IF BROKEN FOR EMERGENCY REASONS, APPLY CARRIER'S SEAL AS SOON AS POSSIBLE AND IMMEDIATELY NOTIFY BOTH THE CONSIGNOR AND THE CONSIGNEE." Carrier will consider this as requiring exclusive use and the charges named in paragraph 1 of this item [charges will be assessed subject to a minimum weight of 5,000 pounds] will be assessed. Any notation which in any way limits or denies carrier access to the Dromedary . . . shall be deemed by the carrier to require exclusive use and the charges named in paragraph 1 of this item shall be assessed. In Baggett Transportation Co. v. United States, 23 Cl. Ct. 263 (1991), aff'd, 969 F.2d 1028 (Fed. Cir. 1992), the Claims Court held that under this particular tariff provision, an annotation on a GBL "is a request for exclusive use if it in any way denies the carrier access" to a dromedary being hauled. Id. at 273. The critical issue, in analyzing the terms of a GBL, is whether the document requires the carrier to receive consent from the Government before it may access the dromedary. Id. The GBL for this shipment states: SHIPPER SEALS APPLIED. Carrier may remove seals and replace with equiv alent [sic] seals on prior consent of consignor. If seals are broken in emergencies, notify consignor . . . as soon as possible. . . . Application of shipper seals does not constitute a request for exclusive use [of (?)] vehicle. As we have already held, consistent with Baggett, this sort of statement, which makes the carrier's access to a container or vehicle contingent on receiving the Government's prior consent, is a request for exclusive use under the terms of Tri-State tariff ICC TSMT 4000-B. Tri-State Motor Transit Co., GSBCA 13826-RATE, 97-2 BCA 29,149; see also Tri-State Motor Transit Co., GSBCA 14120-RATE, 98-1 BCA 29,410 (regarding successor Tri-State tariff which contained same language). The only aspect of the GBL annotation which might be thought to be inconsistent with the tariff provision, so far as we can see, is the final sentence. This sentence merely advises, however, in accordance with Baggett's understanding, that the fact that shipper seals have been applied does not in and of itself mean that the Government has demanded exclusive use. See 23 Cl. Ct. at 274. The sentence applies to use of the vehicle, not use of the dromedary. Even if it pertained to the latter, it does not interfere with the well-established interpretation that the GBL's prior consent limitation, read in conjunction with this tariff, does constitute a requirement for exclusive use. As established in Baggett, 23 Cl. Ct. at 270, and applied in our decisions cited in the preceding paragraph, a carrier may not be paid for providing exclusive use simply because the Government required this service; the carrier must also provide some evidence that it did, in fact, perform the service. Here, Tri- State has supplied documents it generates to record information about each shipment. The documents show that the shipment at issue in this case was transported in its own container. This is sufficient evidence to demonstrate that Tri-State provided the exclusive use for which it seeks to be paid. _________________________ STEPHEN M. DANIELS Board Judge