SCOPE OF LIABILITY

The government's liability under the FCA is somewhat parallel to that under the MCA. Liability is based on two general theories: (1) loss caused by military personnel and (2) loss incident to noncombat military activities. The government's liability under the FCA is generally greater than under the MCA. On the other hand, the FCA is more limited than the MCA in terms of eligible claimants and territorial application.

Loss Caused by Military Personnel

Under the FCA, the government is liable for personal injury, death, and property damage, including both real and personal property, caused by military members or civilian military employees. Unlike the FTCA and the MCA, the scope of employment doctrine does not apply except when the civilian employee is a native foreign national (for example, a Spanish citizen employed by the U.S. Government in Spain who must be acting within the scope of employment for a possible recovery under the FCA). Also, unlike FTCA claims, the acts that caused the loss need not be wrongful or negligent. The government assumes liability for virtually all acts ranging from mere errors in judgment to malicious criminal acts.

Loss Incident to Noncombat Military Activities

The second theory of FCA liability is virtually identical to the second basis for liability under the MCA. The government assumes liability for personal injury, death, or property damage, both real and personal property, caused by, or incident to, noncombat military activities. Such activities are peculiarly military, having little parallel in civilian life, and involve situations in which the federal government historically has assumed liability. If such a loss incident to noncombat military activities is payable both under the FCA and also under the MCA, it will be paid under the FCA.

Effect of Claimant's Negligence

A claimant whose negligent or wrongful conduct partially or entirely caused the loss might be prevented from recovery under the FCA. The effect, if any, of the claimant's contributory or comparative negligence is determined by applying the law of the country where the claim arose. Under such circumstances, the claimant recovers under the FCA only to the extent that his or her own courts would have permitted compensation.

Territorial Application

The FCA applies to claims arising outside the United States, its territories, commonwealths, and possessions. The fact that the claim arises in a foreign country, but in an area that is under the temporary or permanent jurisdiction of the United States (for example, an overseas military base), does not prevent recovery under the FCA.

Relationship to Claims Under Treaty or Executive Agreement

Certain treaties and executive agreements, such as Article VIII of the NATO Status of Forces Agreement, contain claims provisions that may be inconsistent with the FCA principles and procedures. When such treaty or executive-agrccnwn (claims provisions conflict with the FCA, the treaty or the executive agreement usually governs. In countries where such treaty or cxccutivc-agreement provisions arc in effect, directives of the cognizant area coordinator should be consulted before processing any claims by foreign nationals.

EXCLUSIONS FROM LIABILITY

There are two general categories of exclusions from FCA liability: excluded types of claims and excluded classes of claimants.

Excluded Types of Claims

The following types of claims we not payable under the FCA:

Claims that are based solely on contract rights or breach of contract

Private contractual and domestic obligations of

individual military personnel or civilian employees (private debt owed to foreign merchant)

Claims based solely on compassionate grounds

Claims for support of children born out of ^{wedlock where} paternity is alleged against a service member

Claims for patent infringements

Claims arising directly or indirectly from combat activities

Admiralty claims unless otherwise authorized by JAG

Excluded Classes of Claimants

The following types of classes of claimants are excluded from recovering under the FCA: 

. Inhabitants of the United States, including military members and dependents stationed in a foreign country and U.S. citizens and resident aliens temporarily visiting the foreign country . Enemy aliens, unless the claimant is determined to be friendly to the United States . Insurers and subrogee

MEASURE OF DAMAGES

Damages under the FCA are determined by applying the law and local standards of recovery of the country where the incident occurred.

The maximum amount payable under the FCA is $100,000. In the case of a meritorious claim above that amount, the Secretary of the Navy may pay up to $100,000 and certify the balance to Congress for appropriation.

STATUTE OF LIMITATIONS

The claim must be presented within 2 years after the claim accrues. If the claim is presented to a foreign government within this period, pursuant to treaty or executive agreement provisions, the statute of limitations requirement will be satisfied.

PROCEDURES

Under the FCA, the investigation and adjudication functions are merged in a foreign claims commission that the commanding officer appoints. The foreign claims commission not only conducts an investigation similar to a JAG Manual investigation not requiring a hearing, but also is empowered to settle the claim within certain dollar limits.

EXAMPLE

Facts. USS Getunderway was making a goodwill visit to Alexandria, Egypt. EM3 Party went on liberty. Wanting to see as much of the countryside as he could, he hot-wired a car parked near the pier. Later that night, while driving extremely fast, high on hashish, and carefully sipping his ouzo, EM3 Party smashed the car into a tree. The owner, Mr. Mycarbustad, an Egyptian citizen, wants to file a claim. Can he collect?

Solution. Yes, Even though EM3 Party's acts were not in the scope of his employment, were highly negligent, and involved criminal acts, the claim is payable under the FCA.

ADMIRALTY CLAIMS

Admiralty is a vast, highly specialized area of law. The purpose of this section is merely to provide a brief introduction to admiralty claims, with specific focus on the command's responsibilities.

ADMIRALTY LAW DEFINED

Admiralty law involves liability arising out of maritime incidents such as collisions, grounding, and spills. Admiralty claims may be asserted either against or in favor of the federal government. The Navy's admiralty claims usually are handled by attorneys in the Admiralty Division of OJAG. Other judge advocates with specialized admiralty training are located at larger NLSOs and at certain overseas commands. When admiralty claims result in litigation, attorneys with the Department of Justice, in cooperation with the Admiralty Division, represent the Navy in court. Thus, while the command has little involvement in the adjudication or litigation of admiralty claims, it often has critical investigative responsibilities.

STATUTORY AUTHORITY AND References

Suits in Admiralty Act, 46 U.S.C. 741-752 (1982)-The Suits in Admiralty Act provides that a suit in admiralty may be brought against the federal government in all circumstances under which an admiralt y suit could be brought against a private party or vessel.

Public Vessels Act, 46 U.S.C. 781-790 (1982)-The Public Vessels Act supplements the Suits in Admiralty Act and provides for admiralty remedies in cases involving naval vessels.

10 U.S.C. 7623 (1982)-Section 7623 of Title 10, U.S.C., provides for settlement of claims by the government against private parties and vessels.

JAG Manual- Chapter XII of the JAG Manual prescribes the Navy's regulations governing reporting, investigation, and adjudication of admiralty claims for and against the government.

SCOPE OF LIABILITY

The federal government has assumed extensive liability for personal injuries, death, and property damage caused by naval vessels or incident to naval maritime activities. Examples of the specific types of losses that give rise to admiralty claims include incidents such as the following:

l Collisions

l Swell wash and wake damage

l Damage to commercial fishing equipment, beds, or vessels

l Damage resulting from oil spills, paint spray, or blowing tubes

l Damages or injuries to third parties resulting from a fire or an explosion aboard a naval vessel

l Damage to commercial cargo carried in a Navy bottom

l Damage caused by improperly lighted, marked, or placed buoys or navigational aids for which the Navy is responsible

l Personal injury or death of civilians not employed by the federal government (longshoremen, harbor workers, and passengers)

EXCLUSIONS FROM LIABILITY

Certain categories of persons are prevented from recovering under an admiralty claim for personal injury or death incurred incident to maritime activities. Such potential claimants arc compensated under other ^statutes. Such excluded claimants include the following: . Military personnel cannot recover for personal

injury, death, or property damage resulting from the negligent operation of naval vessels, except when they are injured or killed while aboard a privately owned vessel that collides with a naval vessel. . Civil service employees and seamen aboard

Military Sealift Command vessels are limited to compensation under the Federal Employees' Compensation Act, 5 U.S.C. 8101-8150 (1982), for personal injury or death.