23.4 Representative value in exchange. 23.5 Claims for settlement by Department of State or General Accounting Office.

AUTHORITY: The provisions of this Part 23 issued under sec. 4, 63 Stat. 111, as amended; 5 U.S.C. 151c.

SOURCE: The provisions of this Part 23 appear at 22 F.R. 10793, Dec. 27, 1957, unless otherwise noted.

§ 23.1 Remittances made payable to the Department of State.

Except as otherwise specified in this title, remittances of moneys shall be drawn payable to the Department of State and sent to the Department for action and deposit. (See §§ 21.2, 22.2, and 51.40 of this chapter.)

§ 23.2 Endorsing_remittances for deposit in the Treasury.

The Office of Finance-Cashier Unit, the Authentication Office, the Passport Office or Passport Agency, American Embassy, American Legation, American consular office, or other office or unit of the Department of State authorized and required to deposit funds in the Treasury of the United States, is hereby authorized to endorse, or to have endorsed, to the order of the Treasurer of the United States by appropriate stamp, checks, drafts, money orders, or other forms of remittance, regardless of how drawn, which are for payment to the Department of State for deposit in the Treasury of the United States, including those payable to the Secretary of State. § 23.3

Refunds.

(a) Rectifications and readjustments. See § 22.4 of this chapter for outline of circumstances under which fees which have been collected for deposit in the Treasury may be refunded.

(b) Refund of wrongful exactions. See § 13.1 of this chapter concerning

§ 23.5

Claims for settlement by Department of State or General Accounting Office.

Claims for settlement by the Department of State or by the General Accounting Office shall be submitted to the Department in duplicate over the handwritten signature, together with the post office address of the claimant, and with appropriate recommendations of the officer of the Foreign Service, for items such as:

(a) Refunds of amounts representing payroll deductions such as for any retirement and disability fund;

(b) Amounts due deceased, incompetent, or insolvent persons including payees or bona-fide holders of unpaid Government checks;

(c) Amounts claimed from the Government when questions of fact affect either the amount payable or the terms of payment, when for any reason settlement cannot or should not be affected at the Foreign Service office; and

(d) Amounts of checks, owned by living payees or bona-fide holders, which have been covered into outstanding liabilities. The Foreign Service post or the Department of State shall be consulted before preparing the claim to ascertain whether any special form is required to be used. Claims for unpaid compensation of deceased alien employees shall be forwarded to the respective Foreign Service post.

PART 31-ADMINISTRATIVE SETTLEMENT OF TORT CLAIMS AND CERTAIN PROPERTY DAMAGE CLAIMS

The purpose of this part is to establish and provide a procedure for the preparation and submission of claims for personal injury, death, and property loss or damage cognizable under the Federal Tort Claims Act (62 Stat. 983; 28 U.S.C. 2672) and the act of August 1, 1956 (70 Stat. 890; 5 U.S.C. Supp. IV, 170g), and claims for property loss or damage cognizable under the act of June 19, 1939 (53 Stat. 841; 22 U.S.C. 277e), and to authorize certain officers of the Department of State and of the United States Section, International Boundary and Water Com

mission, United States and Mexico, to consider, ascertain, adjust, determine and settle such claims.

§ 31.2

Delegation of authority.

The Legal Adviser and the Deputy Legal Adviser are authorized to consider, ascertain, adjust, determine and settle claims cognizable under the Federal Tort Claims Act and the act of August 1, 1956, except claims arising out of activities of the Commission. Chiefs of mission and principal officers of fiscal reporting posts are authorized to consider, ascertain, adjust, determine and settle claims cognizable under the act of August 1, 1956, arising out of the activities of their respective establishments. The Commissioner is authorized to consider, ascertain, adjust, determine and settle claims cognizable under the Federal Tort Claims Act and the act of June 19, 1939, arising out of activities of the Commission.

As used in this part, the term: (a) "Secretary" means the Secretary of State.

(b) "Department" means the Department of State, its offices, bureaus, and divisions and its Foreign Service establishments abroad.

(c) "Commission" means the United States Section, International Boundary and Water Commission, United States and Mexico.

(d) "Legal Adviser" means the Legal Adviser of the Department of State.

(e) "Deputy Legal Adviser" means the Deputy Legal Adviser of the Department of State.

(f) "Chiefs of mission" means principal officers appointed by the President, by and with the advice and consent of the Senate, in charge of embassies or legations of the United States.

(g) "Principal officers of fiscal reporting posts" means principal officers in charge of embassies, legations, or other diplomatic missions, or of a consulate general or consulate of the United States, which are designated fiscal reporting posts by the Department of State.

(h) “Commissioner" means the United States Commissioner, International Boundary and Water Commission, United States and Mexico.

(i) "Employee" includes any officer or employee of the Department or the Commission, or any person acting on behalf of the Department or the Commission in an official capacity, temporarily or permanently in the service of the Department or the Commission, whether with or without compensation.

§ 31.4 Action by claimant.

(a) Claimant. Claims for property loss or damage may be filed by the owner of the property or his duly authorized agent or legal representative. If the property was insured and the insurer is subrogated, in whole or in part, and if both the owner and the insurer desire to file a claim for their respective losses, they should join in one claim. Claims for personal injury may be filed by the injured person or his agent or legal representative. Claims for death may be filed by the personal representative of the decedent or any other legally qualified person. When filed by an agent or legal representative, the claim must show the title or capacity of the person representing the claimant and be accompanied by evidence of the appointment of such person as agent, legal representative, executor, administrator, guardian, or other fiduciary.

(b) Form of claim. Claims arising in the United States and in the Territories and possessions of the United States should be prepared, in duplicate, on the standard form, "Claim For Damage or Injury," promulgated by the Bureau of the Budget. Copies of this form will be furnished upon a request to the Department or the Commission, as the case may be. All information requested therein should be given in detail. It is especially important that the amount claimed for property damage and for personal injury be indicated in the spaces provided. Claims arising in foreign countries should be prepared in form of a sworn statement and submitted in duplicate. The original copy of the claim should be sworn to or affirmed before an official with authority to administer oaths or affirmations and should contain the following information, at least: (1) The name and address of the claimant; (2) the amount claimed for injury

or death and for property loss or damage; (3) if property was lost or damaged, the amount paid or payable by the insurer and the name of the insurer; (4) the facts and circumstances in detail giving rise to the claim including the date, place and time of the accident or incident; (5) if property was involved, a description of the same and of the nature and extent of the damage and of the cost of repair or replacement; (6) if personal injury was involved, the nature of the injury, the cost of medical services and time and income lost from incapacitation; (7) if death is involved, the names and ages of the claimants and their relationship to the decedent; (8) the name of the employee of the United States who is alleged to be responsible for the accident or incident and the name and address of the Foreign Service establishment by whom he is or was employed; (9) the names and addresses of any witnesses to the accident or incident; and (10) if desired, the law applicable to the claim.

(c) Place of filing claim. Claims should be submitted directly to the office, bureau, division, or Foreign Service establishment of the Department, or of the Commission, out of whose activities the accident or incident occurred, if known; or, if not known, to the Legal Adviser, Department of State, Washington, D.C., 20520.

(d) Evidence to be submitted by claimant (1) General. The amount claimed on account of damage to or loss of property or on account of personal injury or death should, so far as possible, be substantiated by competent evidence. Supporting statements, estimates and the like should, if possible, be obtained from disinterested parties. All evidence should be submitted in duplicate. Original evidence or certified copies should be attached to the original copy of the claim, and simple copies should be attached to the other copy of the claim. All documents in other than the English language should be accompanied by English translations.

(2) Personal injury or death. In support of claims for personal injury or death, the claimant should submit, as may be appropriate, itemized bills for medical, hospital or burial expenses actually incurred; a statement from the claimant's or decedent's employer as to time and income lost from work; and a written report by the attending physician

with respect to the nature and extent of the injury, the nature and extent of treatment, the degree of disability, the period of hospitalization or incapacitation, and the prognosis as to future treatment, hospitalization and the like.

(3) Damage to personal property. In support of claims for damage to personal property which has been repaired, the claimant should submit an itemized receipt, or, if not repaired, itemized estimates of the cost of repairs by two reliable parties who specialize in such work. If the property is not economically repairable, the claimant should submit corroborative statements of two reliable qualified persons with respect to cost, age of the property and salvage value.

(4) Damage to real property. In support of claims for damage to land, trees, buildings, fences, or other improvements to real property, the claimant should submit an itemized receipt if repairs have been made, or, if repairs have not been made, itemized estimates of the cost of repairs by two reliable persons who specialize in such work. If the property is not economically repairable, the claimant should submit corroborative statements of two reliable qualified persons with respect to the value of the improvements both before and after the accident or incident and the cost of replacements.

(5) Damage to crops. In support of claims for damage to crops, the claimant should submit an itemized signed statement showing the number of acres, or other unit measure of crop damaged, the probable yield per unit, the gross amount which would have been realized from such probable yield and an estimate of the costs of cultivating, harvesting and marketing the crop. If the crop is one which need not be planted each year, the diminution in value of the land beyond the damage to the current year's crop should also be stated.

§ 31.6 Investigation of claims.

When a claim is received, the office, bureau, division or Foreign Service establishment out of whose activities the claim arose shall make such investigation as may be necessary or appropriate for a determination of the validity of the claim and thereafter shall forward the claim, together with all pertinent material, and a recommendation regarding allowance or disallowance of the claim, to the Legal Adviser, Deputy Legal Adviser, Commissioner, Chief of Mission or principal officer of fiscal reporting post, as the case may be.

§ 31.7

Determination of claims.

Claims will be determined in accordance with the applicable statute and the applicable subpart of this part.

§ 31.8 Payment of claims.

When a claim is approved, it will be referred to the appropriate fiscal office for payment out of funds appropriated or to be appropriated for the purpose. Subpart B-Federal Tort Claims Act § 31.9 General.

The Federal Tort Claims Act (62 Stat. 983, as amended by 73 Stat. 471; 28 U.S.C. 2672) authorizes the head of each Federal agency, or his designee for the purpose, acting on behalf of the United States, to consider, ascertain, adjust, determine, and settle certain tort claims for money damages of $2,500 or less against the United States.

[24 F.R. 9193, Nov. 10, 1959] § 31.10

Allowable claims.

Tort claims, except those specifically excluded by the Federal Tort Claims Act (28 U.S.C. 2680), are allowable under the act and this subpart for damage to or loss of property and for personal injury or death, caused by the negligent or wrongful act or omission of any employee of the Department or of the Commission, while acting within the scope of his office employment, under circumstances where the United States, if a private person, would be liable for such damage, loss, injury, or death, in accordance with the law of the place where the act or omission occurred. Payment of more than $2,500 in settlement of a claim may not be authorized. The claimant's only remedy, if any, for a claim exceeding

or

The following claims, among others, are not allowable under the Federal Tort Claims Act and this subpart:

(a) 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 or the failure to exercise or perform a discretionary function or duty on the part of a Federal agency or an employee of the Government, whether or not the discretion involved be abused.

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

(c) 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.

(d) Any claim arising in a foreign country. Such claims may be allowable under the act of August 1, 1956. Subpart C of this part.

§ 31.12 Limitations.

See

(a) Claims arising under the Federal Tort Claims Act must be presented in writing, within two years after accrual.

(b) A suit may not be filed while a claim is pending. The claimant may, however, upon fifteen days written notice, withdraw the claim and commence action thereon within six months from the date of notice. If a claim is denied, the claimant may commence action thereon within six months from the date of notice of denial. The amount of the suit may not exceed the amount of the claim, except where the increased amount is based upon newly discovered evidence.

§ 31.13 Acceptance of award or settlement by claimant.

The acceptance by the claimant of an award, compromise or settlement is final and conclusive on the claimant, and constitutes a complete release of any claim against the United States and against the

employee of the Government whose act or omission gave rise to the claim, by reason of the same subject matter. § 31.14 Attorneys' fees.

As part of any award or settlement, reasonable attorneys' fees may be allowed out of, but not in addition to, the amount of the award or settlement. If the award or settlement is $500 or more the fee shall not exceed 10 per centum of the amount of the award or settlement. Any attorney who receives more than the amount allowed may be liable to a fine of not more than $2,000 or imprisonment of not more than one year, or both. Attorneys' fees will be fixed only upon the written request of the claimant or his attorney.

Subpart C-Act of August 1, 1956 § 31.15 General.

The act of August 1, 1956 (70 Stat. 890; 5 U.S.C. Supp. IV, 170g) authorizes the Secretary of State, when funds are appropriated therefor, to pay tort claims in the manner authorized in the first paragraph of 28 U.S.C. 2672, as amended, when such claims arise in foreign countries in connection with Department of State operations abroad. Consequently, the Federal Tort Claims Act and Subpart B of this part are applicable to claims filed under the act of August 1, 1956, except that no provision has been made in that act for the institution of suit if a claim is denied.

Subpart D-Act of June 19, 1939 § 31.16 General.

The act of June 19, 1939 (53 Stat. 841; 22 U.S.C. 277e), provides as follows:

The Secretary of State acting through such officers as he may designate, is further authorized to consider, adjust, and pay from funds appropriated for the project, the construction of which resulted in damages, any claim for damages occurring after March 31, 1937, caused to owners of land or other private property of any kind by reason of the operations of the United States, its officers or employees, in the survey, construction, operation, or maintenance of any project constructed or administered through the American Commissioner, International Boundary Commission, United States and Mexico, if such claim does not exceed $1,000 and has been filed with the American Commissioner within one year after the damage