ment made pursuant to § 750.4 above may be allowed. Attorneys' fees so determined are to be paid out of the amount awarded and not in addition to the award. Where judgment is rendered in favor of the claimant by a court of competent jurisdiction or where settlement is made after suit is filed, attorney's fees shall not exceed 25 percent (28 U.S.C. 2678).

(b) The fee limitations noted above are imposed by statute, and in order to ensure compliance they shall be incorporated in any settlement agreement secured from a claimant.

§ 750.14 Settlement agreement.

A sample settlement agreement including the required statement concerning fee limitations is contained in § 750.91. § 750.15

Claims not payable.

(a) Claims not within the Act. The provisions of the Federal Tort Claims Act do not apply to:

(1) Any claim based upon an act or omission of an employee of the Government exercising due care in the execution of a statute or regulation, whether or not such statute or regulation be valid; or based upon the exercise or performance of, or the failure to exercise or perform, a discretionary function or duty on the part of the Navy or an employee of the Government, whether or not the discretion involved may be abused;

(2) Any claim arising out of the loss, miscarriage, or negligent transmission of letters or postal matter;

(3) Any claim arising in respect of the assessment or collection of any tax or customs duty, or the detention of any goods or merchandise by any officer of customs or excise or any other law enforcement officer;

(4) Any claim for which a remedy is provided by the act of March 9, 1920, as amended (46 U.S.C. 741-752), or the act of March 3, 1925, as amended (46 U.S.C. 981-790) relating to claims or suits in admiralty against the United States (see Part 752 of this chapter concerning admiralty matters);

(5) Any claim arising out of an act or omission of any employee of the Government in administering the provisions of the Trading with the Enemy Act, as amended (50 U.S.C. App. 1–39);

(6) Any claim for damages caused by

50-075-71- -44

the imposition or establishment of a quarantine by the United States;

(7) Any claim arising from the activities of the Panama Canal Company;

(8) Any claim arising out of assault, battery, false imprisonment, false arrest, malicious prosecution, abuse of process, libel, slander, misrepresentation, deceit, or interference with contract rights;

(9) Any claim for damages caused by the fiscal operations of the Treasury or by the regulation of the monetary system;

(10) Any claim arising out of the combatant activities of the military or naval forces, or the Coast Guard, during time of war;

(11) Any claim arising in a foreign country (see Part 753 of this chapter concerning Foreign Claims); and

(12) Any claim arising from the activities of the Tennessee Valley Authority.

(b) Additional claims not payable. Although not expressly excepted from the application of the provisions governing administrative settlement of Federal Tort Claims under title 28, United States Code, the following types of claims shall not be paid:

(1) Any claim for the personal injury or death of a member of the naval forces of the United States incurred incident to service or duty;

(2) Any claim of military personnel or civilian employees of the Navy for damage to or loss, destruction, capture, or abandonment of personal property occurring incident to their service, which claim is cognizable under 31 U.S.C. 240243 and the applicable Personnel Claims Regulations (see Part 751 of this chapter); and

(3) Any claim for the personal injury or death of a civilian employee of the Navy to whom the Federal Employees' Compensation Act, as amended (5 U.S.C. 751-793), is applicable.

§ 750.16 Regulations prescribed by the Attorney General.

Attorney General Regulations for administrative claims under the Federal Tort Claims Act are found at 28 CFR Part 14.

Subpart B-Military Claims

individual, partnership, association, corporation, or political entity, including countries, states, territories, and political subdivisions thereof, but excluding the Federal Government of the United States and its instrumentalities.

(b) The words "military personnel or .civilian employees of the Navy" includes all military personnel of the Navy, prisoners of war and interned enemy aliens engaged by the Navy in labor for pay, and volunteer workers and others serving as employees of the Navy with or without compensation.

(c) Military includes "naval".

§ 750.21 Statutory authority.

(a) Described. 10 U.S.C. 2733, commonly known as the Military Claims Act, authorizes the Secretary of the Navy to pay certain types of claims when they are substantiated in such manner as he, by regulations, may prescribe. The claim must be for damage or loss or destruction of property, real or personal, or for personal injury or death, caused by military personnel or civilian employees of the Navy while (1) acting within the scope of their employment or (2) otherwise incident to noncombat activities of the Navy. It includes claims for damage to or loss or destruction by criminal acts of registered or insured mail while in the possession of the military authorities, claims for damage to or loss or destruction of personal property bailed to the Government, and claims for damages to real property incident to the use and Occupancy thereof, whether under a lease, express or implied, or otherwise. The authority to pay a claim may be delegated, subject to appeal to the Secretary of the Navy and under such regulations as he may prescribe, to such other officer or officers as he may designate for such purposes, when the amount to be paid is $2,500 or less. The Judge Advocate General may pay an amount not in excess of $5,000. When a claim is in excess of $5,000, the Secretary of the Navy may make a partial payment of $5,000 and refer the balance to the Bureau of the Budget for submission to Congress for its consideration.

(b) Applicability. Subject to the exceptions set forth in paragraph (c) of this section, claims not in excess of $5,000 for damage to or loss or destruction of real or personal property, or for -personal injury or death, caused by military personnel or civilian employees of

the Navy while acting within the scope of their employment, or otherwise incident to noncombat activities of the Navy, including claims for damage to or loss or destruction by criminal acts of registered or insured mail while in the possession of the military authorities, claims for damage to or loss or destruction of personal property bailed to the Government, and claims for damage to real property incident to the use and occupancy thereof, whether under a lease, express or implied, or otherwise, are payable by the Secretary of the Navy or his designees under 10 U.S.C. 2733 and §§ 750.20-750.29.

(c) Nonapplicability. See § 750.29 for description of claims not payable. § 750.22

Claims "otherwise incident to noncombat activities."

Claims for damage to or loss or destruction of property, real or personal, or for personal injury or death, although not shown to have been caused by any particular act or omission of military personnel or civilian employees of the Navy while acting within the scope of their employment, are payable under the provisions of the Military Claims Act (10 U.S.C. 2733) if otherwise incident to noncombat activities of the Navy. Claims within this category are those arising out of authorized activities which are peculiarly military activities having little parallel in civilian pursuits, and out of situations in which the Government has historically assumed a broad liability, such as claims for damage or injury arising from, and which are the natural or probable results or incidents of: maneuvers and special exercises; practice firing of heavy guns; practice bombing; naval exihibitions; operation of missiles, aircraft, and anti-aircraft equipment; use of barrage balloons; use of instrumentalities having latent mechanical defects not traceable to negligent acts or omissions; explosions of ammunition; movement of combat vehicles or other vehicles designed especially for military use; and the use and occupancy of real estate.

(e) The commandant or the district judge advocate of the naval district within which the claims arose:

(f) The Officer in Charge, U.S. Sending State Office for Italy, and the Officer in Charge, U.S. Sending State Office for Australia;

(g) The Staff Judge Advocate, U.S. Naval Base, Newport, R.I., and the Staff Judge Advocate, U.S. Naval Submarine Base, New London, Conn., for claims ac.cruing to operators of fishing vessels for damage to nets, booms, lines and other trawler impedimenta as a result of contact with naval ordnance (e.g., mines, torpedoes);

(h) Foreign Claims Commissions; (i) The following area or subarea commanders and their staff judge advocates: (1) Commander, U.S. Naval Base, Newport, R.I.;

(2) Commander, Fleet Air, Jacksonville, Fla.;

(3) Commander, U.S. Naval Base, Key West, Fla.;

(4) Chief of Naval Air Basic Training, Pensacola, Fla.;

(5) Chief of Naval Air Advanced Training, Corpus Christi, Tex.;

(6) Chief of Naval Air Technical Training, Memphis, Tenn.;

(7) Commander, U.S. Naval Base, Long Beach, Calif.;

(8) Commander, U.S. Naval Base, Guantanamo Bay, Cuba;

(9) Commander, U.S. Naval Activities, United Kingdom;

(10) Commander, U.S. Naval Activities, Spain;

(11) Commanding Officer, U.S. Naval Support Activity, Naples, Italy;

(12) Commander, U.S. Naval Forces, Japan;

(j) Such other officers as may be designated by the Secretary of the Navy. § 750.24 Claims for damage, loss, or destruction of mail.

(a) Registered or insured mail. Claims for damage to or loss or destruction, by criminal acts, of registered or insured mail while in the possession of the military authorities are payable under the Military Claims Act. This provision of the Act is in the nature of an exception to the general requirement that the damage, loss, or destruction of personal property, in order to be compensable thereunder, be caused by military personnel or civilian employees of the Navy while acting within the scope of their employment or be otherwise incident to noncombat activities of the Navy. In effect, this provision makes it possible for the Navy to relieve the Post Office Department of its obligation as an insurer with respect to registered and insured mail relinquished into the possession of the Navy for transportation or for delivery to the addressee. For this reason, any award to a claimant under the provisions of this section shall be limited in amount to that which the claimant would be entitled from the Post Office Department in accordance with the registry or insurance fee paid. In all other respects the award shall be subject to the conditions and limitations set forth in the Postal Manual, United States Post Office Department, as applicable to the payment of indemnity by the Post Office Department where the damage, loss, or destruction occurs while the mail matter is in the possession of that Department.

(b) Mail of any class. Claims for damage to or loss or destruction of mail matter of any class, whether or not such mail is insured or registered, are payable, upon proper substantiation, if shown to have been caused by military personnel or civilian employees of the Navy while acting within the scope of their employment, or if otherwise incident to noncombat activities of the Navy. Failure to insure or register mail containing money or articles of substantial value, however, may constitute negligence on the part of the claimant which will preclude recovery. In claims for damage, loss, or destruction of mail matter, not resulting from criminal acts, the amount of the award is not limited to the amount of coverage provided by the insurance or

registry fee paid to the Post Office Department, but is governed by the provisions of this chapter with respect to measure of damages. If claimed, additional damages may be recovered in mail cases in the amount of the postage and any registration insurance or other special fees prepaid, except that such additional damages shall not be paid if the mail matter is delivered to the correct addressee.

§ 750.25 Bailed personal property.

(a) Loaned or rented to the Government. Claims for damage to, or loss, or destruction of personal property loaned, rented, or otherwise bailed to the Government under an agreement, expressed or implied, are payable under the provisions of the Military Claims Act (10 U.S.C. 2733) even though legally enforceable against the Government as contract claims, unless by express agreement the bailor has assumed the risk of damage, loss, or destruction. Subject to the exceptions set forth in § 750.29, the cause of the damage, loss, or destruction is immaterial.

(b) Claims of prisoners of war. Claims of prisoners of war and of interned enemy aliens for damage to, or destruction of, personal property in the custody of the Government are payable only when the proximate cause of the damage, loss, or destruction is shown to be the tortious act or omission of military personnel or civilian employees of the Navy. The authority to pay claims of this nature is also subject to the exceptions set forth in § 750.29.

(c) Processing as contract claims. Claims filed under this section may, if deemed in the best interests of the Government, be referred to and processed by the Office of the General Counsel, Department of the Navy as contract claims.

deemed in the best interests of the Government, be referred to and processed by the Office of the General Counsel, Department of the Navy as contract claims.

§ 750.27 Military claims arising in foreign countries.

(a) Preemptive application of Foreign Claims Act. There are no geographical limitations upon the scope of application of the Military Claims Act. The Foreign Claims Act (10 U.S.C. 2734) and regulations issued pursuant thereto, however, have preemptive application to claims for damage to or loss or destruction of real or personal property, and for personal injury or death, caused by military forces or individual members thereof, whether military personnel or civilian employees, or otherwise incident to noncombat activities of such forces, in a foreign country, to public property located therein, or to the privately owned property, or to the persons of inhabitants of a foreign country. Any claim which arises in a foreign country and which is within the scope of the Foreign Claims Act is precluded from consideration under the Military Claims Act. Any claim which arises in a foreign country and is for any reason not cognizable under the Foreign Claims Act and the regulations issued thereunder, however, may be considered and paid under the Military Claims Act provided it is in all respects in accordance therewith.

(b) Enemy alien. See § 750.29(m).

(c) Relation to other statutory provisions-(1) Advance payments. 10 U.S.C. 2736, concerning advance payments and implemented in §§ 750.43750.44 is applicable to payments otherwise payable under the Military Claims Act (10 U.S.C. 2733).

(2) Claims not cognizable under any other law. 10 U.SC. 2737, relating to certain claims not cognizable under any other law and implemented in §§ 750.40750.42, may, in proper cases, be applied to claims arising in foreign countries.

(3) Federal Tort Claims Act not applicable. Claims arising in foreign countries are expressly excluded by 28 U.S.C. 2680 (k) from consideration under the provisions governing the settlement of Federal Tort Claims.

§ 750.28 Statute of limitations: Military Claims Act.

No claim may be settled under the Military Claims Act unless it is presented in

writing within 2 years after it accrues. If such accident or incident occurs in time of war or armed conflict, however, or if war or armed conflict intervenes within 2 years after its occurrence, any claim may, on good cause shown, be presented within 2 years after the war or armed conflict is terminated. For the purposes of the Military Claims Act, the dates of the beginning and ending of an armed conflict are the dates established by concurrent resolution of Congress or by determination of the President.

§ 750.29 Claims not payable under the Military Claims Act.

The following types of claims are not payable:

(a) Any claim for damage, loss, destruction, injury, or death which was proximately caused, in whole or in part, by any negligence or wrongful act on the part of the claimant, his agent, or his employee;

(b) Any claim for damage, loss, destruction, injury, or death resulting from action by the enemy, or resulting directly or indirectly from any act by armed forces engaged in combat;

(c) Any claim for reimbursement for medical or hospital services furnished at the expense of the United States or, in the case of burial, for such portion of the expense thereof as may be otherwise paid by the United States;

(d) Any claim of military personnel or civilian employees of the Navy for damage to or loss, destruction, capture, or abandonment of personal property occurring incident to their service which claim is cognizable under the Military Personnel and Civilian Employees' Claims Act as amended (31 U.S.C. 240243) and applicable regulations (Part 751 of this chapter);

(e) Any claim arising in a foreign country or possession thereof which is cognizable under the provisions of the Foreign Claims Act (10 U.S.C. 2734) and applicable regulations thereto (Part 753 of this chapter);

(f) Any claim cognizable under 10 U.S.C. 7622 relating to admiralty claims and to claims for damages caused by naval vessels (Part 752 of this chapter);

(g) Any claim for damage to or loss or destruction of real or personal property founded in written contract, except as provided in §§ 750.25-750.26;

(h) Any claim for rent of real or personal property, except as provided in $ 750.26;

(i) Any claim involving the infringement of patents;

(j) Any claim for damage, loss, or destruction of mail matter occurring prior to delivery by the Post Office Department to authorized military personnel or civilian employees of the Navy (e.g., designated Navy mail clerks and assistant Navy mail clerks, mail orderlies, or postal officers);

(k) Any claim for damage, loss, or destruction of mail matter occurring due to the fault of, or while in the hands of, bonded personnel;

(1) Any claim for damage, loss, or destruction of mail matter arising after resumption of possession by the Post Office Department (e.g., for the purpose of forwarding to the addressee at a different address) and prior to redelivery to authorized military personnel or civilian employees of the Navy charged with transportation or distribution to the addressee;

(m) The provisions of the Military Claims Act do not apply to any claim by an inhabitant of a foreign country who is a national of a country at war with the United States or of any ally of such an enemy country, unless it be determined that the claimant is friendly to the United States;

(n) Any claim for personal injury or death of military personnel or civilian employees of the Navy, if such injury or death occurs incident to their service; and

(0) Any claim for damage, injury, or death caused by a member or employee of the Department of the Navy while acting within the scope of his employment, and which is in all other respects within the cognizance of the Federal Tort Claims Act and §§ 750.1-750.16, unless the damage, injury, or death occurred "incident to the noncombat activities" of the Navy as defined in § 750.22. Subpart C-"Nonscope" Law Claims § 750.40 Statutory authority and definitions.