________________________ September 10, 1998 ________________________ GSBCA 13876-RATE, 14501-RATE In the Matter of TRI-STATE MOTOR TRANSIT CO. John R. Bagileo and Claire Shapiro of Bagileo, Silverberg and Goldman, Washington, DC, and Robert D. Norcom, Auditor, Tri- State Motor Transit Co., Joplin, MO, appearing for Claimant. James F. Fitzgerald, Director, Transportation Audits Division, 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. These consolidated cases present the same issue - whether the shipping destination is an ocean port facility referenced in the shipper's tariff. We conclude that claimant has not proved that the shipping destination is an ocean port facility, and that claimant is therefore not entitled to the amounts claimed. GSBCA 13876-RATE Pursuant to government bill of lading (GBL) G-0,839,328, dated February 23, 1993, claimant Tri-State Motor Transit Co. transported a shipment of class C explosives in dromedary containers from Toole, Utah to the Military Ocean Terminal, Sunny Point, North Carolina, where it was to be transferred to the vessel MV Jan Luiken for shipment. The GBL identified the shipment as a Foreign Military Sales Shipment. The shipment was originally billed by claimant under its Tariff TSMT 4001, Section 3, which applies generally to commodities being shipped in dromedary or 410 containers. On or about March 8, 1993, claimant submitted its bill for payment in the amount of $3541.81 and apparently was paid in that amount. Thereafter, claimant became of the opinion that this section of the tariff did not apply because shipments to or from an "ocean port facility" are among the types of shipments specifically excluded from the coverage of the tariff, and recalculated the amounts due seeking the additional sum of $1945.13 per the rates on a different tariff. After the General Services Administration's Office of Transportation Audits (GSA OTA) disallowed the claim on March 21, 1996, claimant requested review by this Board. GSBCA 14501-RATE Pursuant to GBL E-1,187,045, dated October 22, 1991, claimant transported a shipment of Class A explosives from Toole, Utah to the Military Ocean Terminal, Sunny Point, North Carolina. The GBL identified the shipment as a Foreign Military Sales Shipment and cited TSMT 4000-B as the applicable tariff. On or about October 31, 1991, claimant submitted its bill for payment in the amount of $1448.28 and apparently was paid in that amount. Claimant asserts that this shipment was transported in a dromedary (container) and was a Foreign Military Sale. Claimant alleges that the rates in tariff TSMT 4000-B do not apply because the destination was an ocean port facility. On or about November 7, 1994, claimant filed a supplemental claim in the amount of $4445.22, which it says is due per the rates established in a different tariff. After GSA OTA disallowed the claim on December 10, 1997, claimant requested review by this Board. Discussion In both cases, claimant originally billed the Government at the mileage commodity rates applicable to dromedary shipments, but determined upon subsequent audit that the shipments went to "ocean port facilities," which it alleges are excepted from its generally-applicable dromedary rates. Although the cases involve different tariffs, the disputed tariff language is the same. The Government denied both claims, relying on the Comptroller General's decision, Tri-State Motor Transit Co., B- 255631 (July 11, 1994), aff'd on reconsideration (July 26, 1995 and May 3, 1996). In that case, the Comptroller General held that a warehouse at a military ocean terminal is not synonymous with an "ocean port facility" as contemplated by the Tri-State tariff provisions. That decision concluded that transporting goods to a warehouse located near a port is no different from transporting them to a warehouse at any other location, because such a delivery would not entail the delays and added costs justifying higher rates for delivery to an "ocean port facility." Thus, claimant had not demonstrated that the delivery in question was a delivery to an ocean port facility within the meaning of the tariff under which it sought additional recovery. The Comptroller General based his holding on an absence in the record of any evidence that the delivery involved any of the complications and delays underlying the higher rate for delivery to an ocean port facility. Claimant requested reconsideration, arguing that the Comptroller General's holding was a determination of the reasonableness of the tariffs at issue, and such determination was not within the Comptroller General's authority. The Comptroller General issued a decision on reconsideration, B-255631.2 (July 26, 1995), affirming his decision and stating that he had not made a determination as to the reasonableness of the rates, but rather had made a decision as to which tariff applied, based upon the factual record. Claimant counters the Government's reliance on these Comptroller General decisions in the instant cases by once again attempting to prove that a military ocean terminal is an "ocean port facility" within the meaning of the tariff. Claimant has again failed to demonstrate the equivalency of these two types of facilities. Claimant notes that, unlike the GBLs in the earlier case, those in the present case do not indicate that the goods are to be delivered to a warehouse. Claimant has submitted an affidavit from its current director of marketing, who states that delivery procedures at military ports vary from facility to facility and that carriers are ordinarily required to call the port in advance to schedule a delivery time. When the truck arrives at the port, the freight is "generally taken" to some type of holding or storage yard where it can by held by DOD until processed for export. He concludes that: Port deliveries are more difficult and costlier than deliveries because of prescheduling requirements, the presence of unions, additional phone calls and delays caused by the mere fact that the ocean freight facilities are located in heavily congested high traffic areas. Claimant's counsel notes that the GBL in GSBCA 13876-RATE contains the notation "MAKE APPOINTMENT TO OFFLOAD BY CALLING 919 457 8267 MANDATORY." The Department of Defense s Military Traffic Management Command (MTMC) responds that Sunny Point is a large military installation responsible for staging, storing, documenting, transloading, clearing and tracking import and export cargo moving within the Defense Transportation System. It has supplied a declaration from a MTMC Traffic Management Specialist, who states that: The delivering carrier is required to contact the Transportation Office Truck Control Division, which identifies the warehouse where the shipment should be delivered. The carrier's responsibility is terminated upon delivery to the designated warehouse. The carrier does not deliver shipments to dockside nor does the carrier incur any special packaging or preparation costs or responsibilities with regard to cargo shipped. While offering general allegations as to difficulties in delivery to the Sunny Point facility, Tri-State offers no conclusive factual evidence as to where within the Sunny Point facility the cargo was delivered pursuant to the instant GBLs. Tri-State s marketing director states that freight is "generally taken to some type of holding or storage yard," and MTMC's specialist states that delivery is usually to a warehouse. While one GBL did require a phone call to schedule delivery, there is nothing in the record that indicates that this occasioned delay or other increased difficulty to deliver the cargo. Whether the cargo was delivered to a warehouse or a holding area is not dispositive, and does not demand a different conclusion. Claimant has submitted to the Board various statutes from Alaska, California, Connecticut, Delaware, Florida, Iowa, Maryland, Michigan, New Jersey, New York, Pennsylvania, and Rhode Island that claimant believes supports an industry wide- definition of ocean port facility which would encompass a military ocean terminal. In response to claimant s argument regarding these statutes, GSA has furnished information describing the Military Ocean Terminal at Sunny Point. GSA emphasizes: This terminal handles only ammunition and explosives and related materials. No commercial freight of any kind moves through this terminal, since it is owned and operated by the United States Army for the Government of the United States only. All of the [statutes] submitted by the claimant refer[] to either State controlled or assisted type facilities, which are for the use of the general public in exporting or importing materials. The [statutes are] based upon justifying state and U.S. Government funds used to support commerce for all commercial enterprises in the United States. MTMC has offered a similar response with regard to the statutes submitted by claimant. MTMC has states: We note that the state statutes offered by Tri-State appear to have been enacted to accomplish a variety of individual/local purposes to include financing, taxation, development, political jurisdiction and so forth. To argue that definition so devised should apply to and control Department of Defense (DOD) or DOD-arranged shipments to or from military ocean terminals involves a stretch of the imagination. We have explained in our previous comments how a military ocean terminal is like a military installation with command and staff and expansive physical layout. We explained how providing transportation service into and out of a military ocean terminal imposes no greater cost or greater burden on carriers than services into or out of other military installations located throughout the United States. We explained how the definition of a military ocean terminal has long been settled by GAO decisions on exactly the same circumstances as are involved in this case. Finally, we pointed out that DOD shippers and transportation providers, such as Tri-State, agree to rates applicable to the origin/destination points involved in each shipment. Having considered the argument of the parties in this case, we find that claimant has failed in its attempt to factually distinguish the circumstances of the instant cases from those in B-255631. Claimant has not persuaded us that the shipping destination as stated in the GBLs is an ocean port facility. We find the reasoning in B-255631, and the two subsequent decisions on reconsideration, reasonable and persuasive. With regard to the statutes referred to by claimant, we agree with GSA and MTMC. These statutes are enacted to accomplish a variety of state and local purposes with an emphasis on financing. Various definitions in these statutes encompass physical structures such as warehouses. However, the facilities encompassed in these statutes clearly do not include DOD installations. Based on a clear reading of these statutes, we cannot equate a military ocean terminal to an ocean port merely because of similar physical structures. Claimant is not entitled to the additional costs it seeks in these consolidated cases. __________________________ ALLAN H. GOODMAN Board Judge