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753.27

Claims arising in specified foreign countries.

753.28 Claims generated by civilian employees of the Department of Defense. 753.29 Release.

AUTHORITY: The provisions of this Part 753 issued under secs. 2734, 5031, 70A Stat. 154, 278, sec. 2736, 75 Stat. 488, secs. 133, 2734 a-b, 2737, 76 Stat. 512, 517, 767, as amended, sec. 301, 80 Stat. 379, sec. 21, 80 Stat. 1118; 5 U.S.C. 301, 10 U.S.C. 133, 2734, 2734 a-b, 2736, 2737, 5031.

SOURCE: The provisions of this Part 753 appear at 35 F.R. 13106, Aug. 18, 1970, unless otherwise noted.

NOTE: This Part 753 is Chapter XXII of the Manual of the Judge Advocate General of the Navy.

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Claims for personal injury to, or death of, any inhabitant of a foreign country or damage to, or loss of, real or personal property of a foreign country, political subdivision, or inhabitant of a foreign country, occurring outside the United States, its territories, commonwealths, or possessions and caused by its military forces or individual members thereof (whether military personnel or civilian employees) or otherwise incident to noncombat activities of such forces are within the scope of the Foreign Claims Act (10 U.S.C. 2734). The word "claims" as used in this part refers to those demands for payment submitted by individuals, partnerships, associations, or corporations, including foreign countries, and states, territories, and other political subdivisions of such countries, other than such demands for payment as arise under ordinary obligations incurred by the Department of the Navy in the procurement of services or supplies.

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The purpose of the Foreign Claims Act (10 U.S.C. 2734) is "to promote and maintain friendly relations" in foreign countries "through the prompt settlement of meritorious claims." The regulations of this part are to be so administered as to effectuate this expressed purpose of Congress.

§ 753.3 Territorial application.

The provisions of this part are applicable to claims arising outside the United States, its territories, commonwealths, or possessions. The fact that a claim arises at a place, within a foreign country, under the temporary or permanent jurisdiction of the United States does not preclude consideration of such a claim which would otherwise be within the Foreign Claims Act.

§ 753.4 Acts not within scope of employ

ment.

The doctrine of scope of employment has no application to foreign claims arising from the acts of military personnel. Claims, otherwise within the Foreign Claims Act, may be allowed regardless of whether the service member or employee of the United States who caused the damage, injury, or death was acting within the scope of his employment; provided, that claims for damage, injury, or death caused by a civilian employee of the United States, who is not a citizen

of the United States, which occurs in the country where the civilian employee was hired to work, are compensable only when such employee was acting within the scope of his employment. In determining whether conduct, although not expressly authorized, is nevertheless

within the scope of employment, consideration may be given to all of the attendant facts and circumstances including the time, place, and purpose of the activity; whether the activity was in the furtherance of the general interest of the Government; whether the activity is usual for personnel of the grade and classification involved, or reasonably to be expected of such personnel; and whether the instrumentality from which the damage or injury resulted was owned or furnished by the Government. A slight deviation as to time or place will ordinarily not constitute a departure from scope of such employment. Such a deviation, to have legal effect, must be substantial.

§ 753.5 Criminal acts.

The fact that the act giving rise to the claim may constitute a crime does not bar relief. Claims, otherwise within the Foreign Claims Act, may be allowed regardless of whether the act of the military member or civilian employee of the United States which caused the damage, injury, or death was a crime or other wrongful act, or negligence, or mere error of judgment.

§ 753.6 Elements of damage in case of personal injury and death.

Actual and reasonable medical and hospital expenses, reasonable compensation for pain and suffering and loss of earning capacity may be paid in cases of personal injury. If death results, actual and reasonable burial expenses and reasonable compensation for loss of prospective support may also be allowed. Claims of dependents for loss of prospective support are allowable only if such claims are recognized by the law of the country where the injury occurred. In computing damages in cases of personal injury or death, local standards will be taken into consideration as the controlling factor. In case of death, only one claim will be considered. In such a case the amount approved will be apportioned among the beneficiaries in the proportions prescribed by the law or customs of the place where the accident or

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§ 753.8

Use and occupancy of real property.

Claims for damage to real property incident to the use and occupancy thereof by the Government under a lease, expressed or implied, or otherwise, are payable under the provisions of these regulations even though legally enforceable against the Government as contract claims. Payment may, however, be precluded by the provisions of § 753.13. Claims payable under this section may be processed as contract claims if it is deemed to be in the best interests of the Government. Claims for rent of real property are not payable under this part. § 753.9 Other noncombat activities.

Claims for damage to, or loss or destruction of, property, or for personal injury or death, though not caused by acts or omissions of military personnel or civilian employees of the Navy, are payable under the provisions of this section if otherwise incident to the noncombat activities of the Navy. In general, the claims within this category are those arising out of authorized activities which are peculiarly military in nature, having little parallel in civilian pursuits, and which arise out of situations that historically have been considered as furnishing a proper basis for the payment of claims. Included are claims where no particular act or omission on the part of military personnel or civilian employees is present. Claims arising out of activities which involve the use of dangerous instrumentalities, such as explosives, or which result from maneuvers and special field exercises, practice firing of heavy guns, practice bombing, operation of aircraft and antiaircraft equipment, movement of combat vehicles or other vehicles designed especially for military use, or the use of instrumentalities having latent mechanical defects are also included regardless of whether such resulting dam

age, injury, or death is traceable to acts or omissions of military personnel or civilian employees of the United States. § 753.10 Persons excluded as claimants. The following classes of claimants are among those excluded:

(a) Inhabitants of the United States. Members and civilian employees of the Armed Forces of the United States and their dependents who are inhabitants of the United States and who are in a foreign country primarily because of their sponsors' or their own military orders; and

(b) Enemy aliens. Nationals of a country at war with the United States, or any ally of such an enemy country, except as the Foreign Claims Commission considering the claim, or the local military commander shall determine that the claimant is friendly to the United States. § 753.11 Claims excluded.

The following classes of claims are excluded:

(a) Claims purely contractual in character;

(b) Private contractual and domestic obligations of individual military personnel or civilian employees;

(c) Claims based solely on compassionate grounds;

(d) Bastardy claims; and

(e) Claims for patent infringements.

§ 753.12

Negligence or wrongful act on the part of claimant.

No claim will be allowed where the damage, injury, or death is proximately caused, in whole or in part, by negligence or wrongful act on the part of the claimant, his agent, or employee. This limitation is applicable to situations where, under the law of the country where the claim arises, contributory negligence bars recovery. However, if under the law or custom of the country in which the claim arises, such contributory negligence or wrongful act is not recognized as a bar to recovery in tort claims, or is held to be a factor diminishing the extent of the claimant's recovery, then such local law or custom will be applied as far as practicable in determining the effect of such negligence or wrongful act.

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gaged in combat, are not payable under the Foreign Claims Act.

§ 753.14 Claims of subrogees.

In cases of damage to or loss or destruction of property or personal injury or death covered by insurance, settlement will be made solely with the insured or his legal representative, rather than with the insurer, or with both the insured and the insurer. No inquiry will be made into the relative interests as between insured and insurer. The entire claim, including any portion covered by insurance, will be filed by, or on behalf of, the insured and payment of the entire amount allowed will be made to the insured as the real claimant. Claims by insurers in their own right are not within the provisions of the Foreign Claims Act and will not be considered. Insurers presenting such claims shall be informed that subrogation claims are not recognized under the Act. Evidence of authority to file a claim on behalf of the insured may be established by a power attorney or other documentary evidence satisfactory to the Foreign Claims Commission.

§ 753.15

Statute of limitations.

A claim may be allowed under this part only if presented within 2 years after it accrued.

§ 753.16 Nature of claim.

Any claim will be considered if it states the material facts with such definiteness as to give reasonable notice of the time, place, and nature of the accident or incident out of which the claim arose and an estimate or statement of the damage, loss, destruction, injury, or death resulting. The claim should be signed by, or on behalf of, the claimant and should, if practicable, be under oath. In cases in which the claim is made in behalf of the true claimant, satisfactory evidence of authority to act for the claimant must be furnished.

§ 753.17 Claims for damage occasioned by naval vessels.

Unless specifically authorized by the Judge Advocate General in each case, the Foreign Claims Commission shall not assume jurisdiction or proceed to hear any claim for damage occasioned by a naval vessel. This provision applies to claims for damage caused to land structures as well as claims of an admiralty nature. The occurrence of any such damage, if brought to the attention

of a claims commission, shall be reported immediately to the Judge Advocate General: Attention Admiralty Division.

§ 753.18 Creation of foreign claims Commission.

(a) Appointing authority. All commanding officers are hereby granted authority to appoint Foreign Claims Commissions. For the purposes of the Foreign Claims Act and these regulations, the Officer in Charge, U.S. Sending State Office for Italy; the Officer in Charge, U.S. Sending State Office for Australia; Chiefs of Naval Missions (including chiefs of the naval section of military missions); Chiefs, Military Assistance Advisory Groups (including Chiefs, Naval Section, MAAGS); Senior Naval Advisor to Argentina; and naval attachés are to be considered commanding officers. Commissions may be appointed to consider each claim as presented, or one commission constituting standing claims commission may be appointed to consider all claims presented. The commanding officer to whom a claim is presented shall refer the claim to such a commission.

a

(b) Composition of commissions and review in relation to amount of claims. Claims may be considered by a one member foreign claims commission where the amount claimed does not exceed $1,000. Where the amount claimed exceeds $1,000, a three member commission shall consider the claim. The findings of the claims commission are final and not subject to review where the amount awarded and accepted is not in excess of $2,500. Where the amount the claims commission recommends exceeds $2,500, but does not exceed $5,000, payment may be made only when the commanding officer has approved the recommendations of the commission. Where the claims commission recommends payment in excess of $5,000 but less than $15,000, payment may be made only when approved by the Judge Advocate General, or, with respect to claims which arise in Italy, the Officer in Charge, U.S. Sending State Office for Italy, or, with respect to claims which arise in Australia, the Officer in Charge, U.S. Sending State Office for Australia. As to claims which exceed $15,000, see § 753.25.

(c) Appointment of commissions by JAG. The Judge Advocate General may appoint Foreign Claims Commissions. The appointment and conduct of these commissions shall be in accordance with

the regulations of this chapter wherever applicable, except that in cases where the amount awarded is greater than $2,500, the findings may be paid only when approved by the Judge Advocate General. § 753.19 Membership of commissions.

As appropriate, foreign claims commissions shall consist of one or three commissioned officers of the Navy or Marine Corps whose grades shall be commensurate with the responsibilities to be executed in carrying out the purposes of the Foreign Claims Act.

§ 753.20 No formal procedure prescribed.

No formal procedure for the conduct of an investigation of a foreign claim is prescribed. However, the investigative procedures as set forth in Subpart M of Part 719 of this chapter should be followed as a guide. A transcript of the testimony of witnesses is not required and only the substance of statements of witnesses need be recorded. It is desirable, however, that signed statements of material witnesses be made a part of the record. The formal rules of evidence need not be adhered to, and any evidence, regardless of its form, which the commission deems material may be received and evaluated.

§ 753.21 Report of proceedings.

(a) The commission shall make a written report of each claim setting forth findings of facts and a determination as to what amount constitutes just compensation to the claimant. This report shall also include the following:

(1) The date or dates of the hearing or hearings;

(2) The date of the final determination;

(3) The amount claimed stated in the indigenous currency and the conversion into U.S. currency at the existing official rate of exchange on the date of initial consideration of the claim;

(4) The amount awarded stated in the indigenous currency and the conversion into U.S. currency at the existing official rate of exchange of the date of final determination;

(5) A brief statement of facts, including the date of accident, incident, or injury, the date the claim was filed, and the nature of the damage or injury sustained;

(6) Findings as to necessary jurisdictional facts; and

(7) A discussion of local law and customs which may be applicable in the adjudication of the claim.

(b) A copy of the precept creating the commission, together with a copy of claimant's release, where the claim has been favorably adjudicated or where favorable adjudication is recommended, or copy of the notice of denial where the claim has been disallowed, should be attached to the report.

(c) The original report, together with three copies, shall be submitted to the convening authority.

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Upon completion of the report of the commission, and approval by the convening authority when required, the claimant shall be notified of the award. Upon claimant's execution of a release for the amount of the award, this release, together with the original and one copy of the report of the commission, shall be transmitted to the nearest Navy or Marine Corps disbursing officer for preparation and payment of the public voucher. At the same time, one copy of the report shall be forwarded to the Secretary of the Navy (Office of the Judge Advocate General).

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(a) A release shall be obtained from the claimant in every case in which an award is accepted.

(b) The release executed by the claimant should release the United States and also release the tortfeasor or the persons who have occasioned the damage, injury, or death, if their identity is known. If the identity of such persons is unknown, the release should recite that the claimant also releases the person or persons who occasioned the damage, injury, or death, the names and identity of said person or persons being unknown to the claimant.

(c) The release should preclude any possible future assertion of the claim for which the United States has made compensation.

(d) A suggested release is contained in § 753.29.

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Claims within the Foreign Claims Act where the total amount due on account of damage, injury, and death exceeds $15,000, and where the claimant will not accept $15,000 in full satisfaction and final settlement of his claim, shall be forwarded directly to the Judge Advocate General for legal review and appropriate administrative action. The record in such proceedings shall include signed statements of material witnesses or transcripts of their oral testimony. The Foreign Claims Commission shall forward with any such claim its findings and recommendations as to the action to be taken (including its findings as to the extent and nature of the damage, injury, and/or death sustained) together with, if practicable, a statement from the owner of the property or the person injured, or the legal representative of the person killed, signifying his willingness to accept the amount so found in full satisfaction and final settlement of his claim. In all such cases, the original and two copies of the report, claim, and supporting papers shall be forwarded. The remaining copy should be retained by the commission for its files.

§ 753.26 Claims outside the jurisdiction of the commission.

Claims arising from incidents on the high seas are ordinarily not within the jurisdiction of a Foreign Claims Commission. See § 753.17. In cases in which a commission considers that the claimant (or decedent in the case of a death claim) is not an inhabitant of a foreign country, or is not the government or a political subdivision of a foreign country, reports shall be forwarded in triplicate to the Judge Advocate General as in cases under § 753.25.

§ 753.27 Claims arising in specified for. eign countries.

(a) Under NATO Status of Forces and similar agreements. The United States has ratified the NATO Status of Forces Agreement and has entered into similar agreements with other foreign countries. Article VIII of the NATO Status of Forces

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