32 C.F.R. Subpart G—Foreign Claims (10 U.S.C. 2734)
Title 32 - National Defense
This subpart tells how to settle and pay claims against the United States presented by inhabitants of foreign countries for property damage, personal injury, or death caused by military and civilian members of the US Armed Forces in foreign countries. (a) Foreign country. A national state other than the United States, including any place under jurisdiction of the United States in a foreign country. (b) Inhabitant of a foreign country. A person, corporation, or other business association whose usual place of abode is in a foreign country. The term “inhabitant” has a broader meaning than such terms as “citizen” or “national”, but does not include persons who are merely temporarily present in a foreign country. It does not require foreign citizenship or domicile. (c) Appointing authority. An Air Force official authorized to appoint members to foreign claims commissions (FCC). (a) Settlement authority: (1) The Secretary of the Air Force has the authority to: (i) Settle claims for payment of $100,000 or less. (ii) Settle claims for more than $100,000, pay the first $100,000, and report the excess to the General Accounting Office for payment. (iii) Deny claims in any amount. (2) The Judge Advocate General has delegated authority to: (i) Settle claims for payment of $100,000 or less. (ii) Deny claims in any amount. (3) The Deputy Judge Advocate General, Director of Civil Law, and the Chief, Deputy Chief and Branch Chiefs, Claims and Tort Litigation Staff are each a foreign claims commission and have delegated authority to: (i) Settle claims for payment of $50,000 or less. (ii) Deny a claim in any amount. (4) The SJAs of PACAF, USAFE, 9AF (for CENTCOM) and AFSPACECOM (for Greenland and Canada) are each a foreign claims commission and have delegated authority to approve claims for payment arising within their geographic area of responsibility for $50,000 or less, or deny claims of $50,000 or less. (5) The SJAs of Numbered Air Forces in PACAF and USAFE; the SJA of HQ TUSLOG; the SJA of 12AF (for South America); and the SJAs of Lajes AB, Azores, Patrick AFB, FL, and Howard AFB, Panama are each a foreign claims commission and have delegated authority to: (i) Recommend payment in any amount. (ii) Settle claims for payment of $25,000 or less. (iii) Deny claims for $50,000 or less. (6) The SJAs of each Air Force base, station and fixed installation in PACAF, USAFE, and CENTCOM, are each a foreign claims commission and have delegated authority to: (i) Recommend payment in any amount. (ii) Settle claims for payment of $10,000 or less. (iii) Deny claims for $25,000 or less. (b) Authority to appoint FCCs. (1) The Chief, Claims and Tort Litigation Staff, has the delegated authority to appoint a judge advocate or civilian attorney as a FCC and to redelegate all or a part of his or her settlement authority to that FCC. (2) A settlement authority appointed as a FCC in paragraph (a) of this section may appoint one or more subordinate judge advocates or civilian attorneys as FCCs, and may redelegate all or part of that settlement authority to those FCCs, in writing. Every FCC must have authority to settle claims for at least $10,000. (c) Authority to reduce, withdraw, or restore settlement authority. Any superior settlement authority may reduce, withdraw, or restore delegated authority, in writing, except no one may reduce or withdraw the authority of a FCC to settle claims for $10,000 or less. (d) Settlement negotiations. A settlement authority may settle a claim in any sum within its settlement authority, regardless of the amount claimed. Send uncompromised claims in excess of the delegated authority through claims channels to the level with settlement authority. Unsuccessful negotiations at one level do not bind higher authority. (e) Special exceptions. Do not settle claims for medical malpractice without HQ USAF/JACC approval. [55 FR 2809, Jan. 29, 1990, as amended at 55 FR 32076, Aug. 7, 1990; 56 FR 1574, Jan. 16, 1991] (a) How and when filed. A claim is filed when a federal agency receives from a claimant or authorized agent a properly completed SF 95 or other signed and written demand for money damages in a sum certain. A claim belonging to another agency is promptly transferred to the appropriate agency. (b) Amending a claim. A claimant may amend a claim at any time prior to final action. An amendment must be in writing and signed by the claimant or authorized agent. Subpart Q outlines procedures for advance payments. (a) A claim must be filed in writing within 2 years after it accrues. It accrues when the claimant discovers or reasonably should have discovered the existence of the act that resulted in the claimed loss or injury. (b) In computing the statutory time period, the day of the incident is excluded and the day the claim was filed is included. (c) War or armed conflict does not toll the statute of limitations. (a) Owners of the property or their authorized agents for property damage. (b) Injured persons or other authorized agents for personal injury. (c) Executors or administrators of a decedent's estate, or any other person legally entitled to do so under applicable local law, for an individual's death. (d) Authorized agents (including the claimant's attorney) must show their title or legal capacity and present evidence of authority to present the claim. Claimants include inhabitants of a foreign country who are: (a) Foreign nationals. (b) US nationals, unless they reside there primarily because they are: (1) Employed directly by the United States. (2) Employed by a US civilian contractor to further performance of a contract with the United States. (3) Sponsored by or accompanying someone employed as described in §842.62(b) (1) or (2) of this part. (c) US corporations with a place of business in the country in which the claim arose. (d) Foreign governments and their political subdivisions, including a municipal and prefectural government. (e) Foreign companies and business entities. Persons who are not proper claimants include: (a) Insurers and other subrogees. (b) Dependents accompanying US military and US national civilian employees. (c) Foreign military personnel suffering property damage, personal injury, or death from a joint military mission with the United States or from conduct of a US military member or employee acting in the scope of employment unless an international agreement specifically provides for recovery. (d) Civilian employees of the United States, including local inhabitants, injured in the scope of their employment. (e) National governments and their political subdivisions engaging in war or armed conflict with the United States or its allies. (f) A national or nationally controlled corporation of a country engaging in war or armed conflict with the United States or its allies, unless the FCC or local military commander determines the claimant is friendly with the United States. The following criteria is considered before determining liability. (a) The incident causing the damage or injury must occur outside the United States. It must be caused by noncombatant activities of the US Armed Forces or by civilian employees or military members of the Armed Forces. (b) Negligence is not a prerequisite. (c) Scope of employment is considered in the following situations. (1) It is a prerequisite to US responsibility if the employee causing the damage or injury is a local inhabitant, a prisoner of war, or an interned enemy alien. These persons are “employees” within the meaning of the Foreign Claims Act (FCA) only when in the service of the United States. Ordinarily, a slight deviation as to time or place does not constitute a departure from the scope of employment. The purpose of the activity and whether it furthers the general interest of the United States is considered. If the claim arose from the operation or use of a US Armed Forces vehicle or other equipment by such a person, pay it provided local law imposes liability on the owner of the vehicle or other equipment in the circumstances involved. (2) It is immaterial when the claim arises from the acts or omissions of any US Armed Forces member or employee not listed in §842.64(c)(1) of this part. The Act imposes responsibility on the United States when it places a US citizen or non-US citizen employee in a position to cause the injury or damage. If the cause is a criminal act clearly outside the scope of employment, ordinarily pay the claim and consider disciplinary action against the offender. A claim is not payable when it: (a) Has been paid or denied by a competent tribunal under the North Atlantic Treaty Organization (NATO), Status of Forces Agreement (SOFA), or any similar SOFA or treaty. (b) Is purely contractual in nature. (c) Is for attorney fees, punitive damages, a judgment or interest on a judgment, bail, or court costs. (d) Accrues from a private contractual relationship between US personnel and third parties about property leases, public utilities, hiring of domestic servants, and debts of any description. This claim is sent for action to the commander of the person concerned (see 32 CFR part 818). (e) Is based solely on compassionate grounds. Note: A Solatium payment is paid from O&M funds as an investigative expense. (f) Is a bastardy claim. (g) Is for patent or copyright infringement. (h) Is waived under an international agreement. (i) Is for rent, damage, or other payments involving regular acquisition, possession, and disposition of real property by or for the Air Force. (j) Is filed by a Communist country or its inhabitants, unless authorized by HQ USAF/JACC. (k) Is for real property taken by a continuing trespass. (l) Is for personal injury or death of a person covered by: (1) The Federal Employees' Compensation Act (5 U.S.C. 8101, et seq.). (2) The Longshore and Harbor Workers' Compensation Act (33 U.S.C. 901, et seq.). (3) A US contract or agreement providing employee benefits through insurance, local law, or custom, where the United States pays for them either directly or as part of the consideration under the contract. (See 42 U.S.C. 1651 and 42 U.S.C. 1701.) The Judge Advocate General or Chief, Claims and Tort Litigation Staff, HQ USAF/JACC, may authorize an award where local benefits are not adequate. Local benefits are deducted from any award. (m) Results from an action by an enemy, or directly or indirectly from an act of the armed forces of the United States in combat, except that a claim may be allowed if it arises from an accident or malfunction incident to the operation of an aircraft of the armed forces of the United States, including its airborne ordnance, indirectly related to combat, and occurring while preparing for or going to, or returning from a combat mission. (n) Is based on negligence of a concessionaire or other independent contractor. (o) Arises out of personal activities of dependents, guests, servants, or pets of members and employees of the US Armed Forces. (This includes situations where local law imposes strict liability or where the head of a household is held vicariously liable for their negligence.) (p) Is the subject of litigation against the United States or its employees. This restriction does not apply to joint criminal/civil proceedings in a foreign court. Claims settlement may be authorized by HQ USAF/JACC in appropriate cases on request. (q) Is covered under US admiralty laws, unless authorized by The Judge Advocate General or Chief, Claims and Tort Litigation Staff. (r) Is one for which a foreign government is responsible under SOFA, treaty, or other agreement. However, HQ USAF/JACC may authorize payment of a claim where the foreign government refuses to recognize its legal responsibilities and the claimant has no other means of compensation. This paragraph provides guidance to determine the applicable law for assessment of liability. (a) A claim is settled under the law and standards in effect in the country where the incident occurred. In calculating the amount of any lump sum award, the present value of any periodic payment upon which the award is based, is computed, unless the law of the place of occurrence prohibits it. (b) Contributory negligence committed by the claimant, claimant's agent, or employee is not used as a bar to recovery unless local law or custom requires it. If the comparative negligence doctrine is used, the percentage of negligence of each party is reflected in the apportionment of liability. The amount of damage sustained by both parties is apportioned according to local law. (c) The following principles of the collateral source doctrine are applied in settling a claim except where local law provides otherwise: (1) Any sums the claimant recovers from collateral sources, including proceeds of property insurance the claimant paid for are not deducted from the claim except when those sums are from: (i) The US Government. (ii) A US military member or employee. (iii) A Joint tort-feasor. (iv) An Insurer of §842.66(c)(1)(i), (ii), or (iii), above. (2) Do not deduct insurance or any other payments where the US military member or employee would have to make reimbursement. This paragraph provides the procedures used to reconsider a final denial. (a) An FCC may reopen, reverse, or reconsider, in whole or in part, any claim it previously decided if the request for reconsideration is received in a reasonable time. Sixty days is considered a reasonable time, but the FCC may waive the time limit for good cause. (b) An FCC reconsiders the final action on a claim when there is: (1) New and material evidence concerning the claim. (2) Obvious error in facts or calculation of the original settlement. (3) Fraud or collusion in the original submission of the claim. (c) The FCC must state the reason for reconsideration in its opinion. A court decision is not in itself sufficient basis for reconsidering a claim, but the facts that resulted in the judgment may warrant reconsideration. The amount of a court judgment is not binding on a FCC's determination of damage, but the commission may consider the judgment as evidence of the local law on the subject. The Air Force becomes subrogated to the rights of the claimant upon settling a claim. The Air Force has the rights of indemnity and contribution permitted by the law of the situs or under contract. Contribution or indemnity should not be sought: (a) From US military personnel or civilian employees whose conduct gave rise to government liability. (b) Where recovery action would be harmful to international relations.
Title 32: National Defense
PART 842—ADMINISTRATIVE CLAIMS
Subpart G—Foreign Claims (10 U.S.C. 2734)
§ 842.55 Scope of this subpart.
§ 842.56 Definitions.
§ 842.57 Delegations of authority.
§ 842.58 Filing a claim.
§ 842.59 Advance payments.
§ 842.60 Statute of limitations.
§ 842.61 Who may file a claim.
§ 842.62 Who are proper claimants.
§ 842.63 Who are not proper claimants.
§ 842.64 Payment criteria.
§ 842.65 Claims not payable.
§ 842.66 Applicable law.
§ 842.67 Reconsideration of final denials.
§ 842.68 Right of subrogation, indemnity, and contribution.
