Appealed from: U.S. Claims Court. Judge Margolis
Before Michel, Circuit Judge, Friedman, Senior Circuit Judge, and Rader, Circuit Judge.
FRIEDMAN, Senior Circuit Judge.
The sole question in this appeal is whether the United States requested two motor carriers to provide exclusive use of the containers used to transport government property, the effect of such request being that the carriers would be entitled to increased shipping charges. The United States Claims Court held that the United States had not requested exclusive use, and dismissed the carriers' suit for the additional charges. We affirm.
A. During the latter half of 1986, Baggett Transportation Co. (Baggett) and Coast Counties Express, Inc. (Coast) transported goods for the Department of the Army under contracts with the Military Traffic Management Command (MTMC). The contracts between the government and the carriers consisted of three documents: the "tender" is the carrier's continuing offer to perform transportation services for stated prices; the carrier's "tariff" is a document on file with the Interstate Commerce Commission, incorporated by reference into the carrier's tender, which sets forth applicable rates, charges, and services; the government bill of lading is the document by which the government accepts the carrier's services, and the government often annotates it with various directions to the carrier. The shipments consisted primarily of hazardous materials such as explosives, weapons, and ammunition.
The carriers' tariffs provided a higher rate for "exclusive use" requested by the shipper. "Exclusive use" means that the carrier will not combine a shipment with any other on the same vehicle or in the same container; a carrier providing this service thus might transport a shipment on partially filled trucks or with partially filled containers.
The carriers billed and received payment from the Department of Defense for these services at the regular non-"exclusive use" rate. More than a year later, Baggett and Coast submitted supplemental bills to the Defense Department, claiming that they provided exclusive use of shipping containers, known as dromedaries, at the government's request. The government refused to pay the supplemental charges, and Baggett and Coast filed suit in the Claims Court for those charges.
B. In their complaints, Baggett and Coast alleged that the government requested exclusive use of containers through a notation on its bills of lading referred to as the "prior consent statement," and Baggett further alleged that for some of its shipments, the government requested exclusive use through its application of locks to shipping containers.
The Claims Court granted summary judgment for the government and dismissed the complaints. The court held that neither the notation nor the application of locks constituted a request for exclusive use. Baggett Transp. Co. v. United States, 23 Cl. Ct. 263, 272, 274 (1991). In so holding, the court examined the contracts between the government and the carriers, the regulations governing requests for exclusive use, and, in Coast's case, a tariff bureau quotation addressing requests for exclusive use.
The court concluded that for exclusive use charges to apply, "(1) there must be some evidence that exclusive use of vehicle services was, in fact, performed . . . [and] (2) there must be substantial compliance with requirements of the tender or tariff concerning an annotation on the [bill of lading] requesting exclusive use." Id. at 270. The court held that there was some evidence that the carriers provided exclusive use, but that there was no "substantial compliance" with the tender or tariff rules concerning requests for exclusive use. The court further concluded that the governing regulations and tariff bureau quotation supported the government's position that it did not request exclusive use. Id. at 270-72.
A. 1. Baggett and Coast first contend that the following "prior consent statement," a notation which appeared on the government's bills of lading in most of the shipments, constituted a request for exclusive use:
SHIPPER SEAL(S) APPLIED. CARRIER MAY REMOVE SEAL(S) AND REPLACE WITH EQUIVALENT SEAL(S) ON PRIOR CONSENT OF CONSIGNOR. IF SEALS ARE BROKEN IN EMERGENCIES, NOTIFY CONSIGNOR AS SOON AS POSSIBLE. CARRIER MUST ANNOTATE SEAL CHANGES ON [BILL OF LADING]. APPLICATION OF SHIPPER SEALS DOES NOT CONSTITUTE A REQUEST FOR EXCLUSIVE USE OF VEHICLE/CONTAINER.
The carriers rely on a decision of our predecessor court, Campbell "66" Express, Inc. v. United States, 302 F.2d 270 (Ct. Cl. 1962), and a decision of the Comptroller General, American Farm Lines, Inc., Nos. B-203805, B-204113 (Comptroller General, December 24, 1981), to support their contention that the prior consent statement was a request for exclusive use.
In Campbell, the government bill of lading contained the following language:
Do not break seal except in case of emergency.
Notify Consignee Of Circumstances When Seal Is Broken, With Advice Of New Seal Number Applied, By Showing Such Information On Waybill Or Other Form Or ...