Claims on behalf of deceased or incompetent members.

836.154 Appeals. 836.155 Forms.

GENERAL PROVISIONS

AUTHORITY: §§ 836.1 to 836.6 issued under R. S. 161, sec. 202, 61 Stat. 500, as amended; 5 U. S. C. 22, 171a. Interpret or apply sec. 1, 57 Stat. 372, as amended, sec. 1, 59 Stat. 225, sec. 1, 62 Stat. 983, as amended, sec. 1, 64 Stat. 144; 31 U. S. C. 222c, 223b, 28 U. S. C. 2672, 50 U. S. C. 735.

SOURCE: §§ 836.1 to 836.6 appear at 17 F. R. 3320, Apr. 15, 1952.

§ 836.1 Definitions. The word "claims" as used in this part refers to those demands for payment in money submitted in writing by individuals, partnerships, associations, or corporations, including countries, states, territories, and their political subdivisions, but excluding the Federal Government of the United States and its instrumentalities and excluding such demands for payment as arise under obligations incurred by the Department of the Air Force or the United States Air Force in the regular procurement of services or supplies (contract claims).

§ 836.2 Investigations. (a) Immediate responsibility for the investigation of an accident or incident rests upon the commanding officer of that Air Force base or corresponding unit, or that higher echelon, or installation or air attaché most directly involved. Normally it will be the commanding officer of the personnel involved or of the installation on which the accident or incident occurred: Provided, That where two or more units or installations are concerned, the senior of the commanding officers concerned will decide which of them will have immediate responsibility for the investigation.

(b) Every investigation will be conducted or supervised by a claims officer. Upon receipt by any commanding officer of information of an accident or incident for the investigation of which he is responsible, he will refer the matter, with all then available information relating thereto, to his claims officer.

(c) Responsibility for the investigation of an accident or incident occurring at an oversea location not served by an Air Force unit or installation will be placed upon the air attache. However, it is preferable to send a claims officer to the location of the incident and this should be done if practicable.

(d) Responsibility for an investigation may be transferred where it is determined by the commanding officer immediately responsible for the investigation that it is necessary or desirable for it to be conducted or completed by some other installation or unit. The commanding officer will not transfer responsibility, however, where only a minor portion of the investigation, such as the procurement of statements from witnesses, is to be conducted by another command. In such instances, he will retain the complete file on the claim and will request whatever assistance is required from the commanding officers of the unit or installation where the evidence is to be procured. When the commanding officer responsible for an investigation considers it necessary or desirable to transfer such responsibility, he will transmit direct to the commanding officer of the installation or unit which is to conduct the investigation, a report of the accident or incident in writing (or orally, and later confirmed in writing) with all evidence and other data theretofore obtained.

(e) If the commanding officer of a unit or installation of another service requests assistance in the investigation of any claim from the commanding officer of an Air Force installation or unit, the latter will comply with the request. In the same manner the Air Force commanding officer having responsibility for making investigations may request assistance in the investigation of any claim from any other service.

§ 836.3 Action by claimant-(a) Presentation of claim-(1) Property damage, 3. or destruction. Claims for damage loss or destruction of property may esented by the owner of the propor his duly authorized agent or legal

representative. The word "owner" as so used includes bailees, lessees, mortgagors, and conditional vendees, but does not include those having title for purposes of security only.

Claims

(2) Personal injury or death. for personal injury ordinarily will be presented by the injured person or his duly authorized agent or legal representative. Claims for medical, hospital, and burial expenses may be presented by any person who, by reason of family relationship, has in fact incurred the expenses for which claim is made. Claims for wrongful death will be presented as provided in §§ 836.31 to 836.46, and §§ 836.61 to 836.83.

(3) Subrogees. Claims of subrogees are governed by the provisions of §§ 836.11 to 836.56, §§836.61 to 836.83 and §§ 836.90 to 836.108.

(b) Requirements. Claimants should submit in triplicate a dated statement setting forth the following information:

(1) Claimant's address (military personnel should state military and permanent home address).

(2) Circumstances attending the accident or incident:

(i) Date, place, property, and persons involved.

(ii) Nature and extent of the damage, loss, destruction or injury.

(3) Agency which was the cause or occasion thereof.

(4) Whether or not a suit has been filed in a United States District Court on the subject matter of the claim; if so, the outcome or status of such a suit.

(c) Evidence to be submitted-(1) General. The amount claimed for damage to or loss or destruction of property, or for personal injury or death, should be substantiated by competent evidence. (2) Property damage. (i) In support of claims for damage to personal property which has been or can be economically repaired, the claimant should submit in triplicate itemized signed receipts evidencing payment or an itemized statement or estimate of the cost of repairs from a reputable firm. If not economically reparable, or if the property is lost or destroyed, the claimant should submit statements in triplicate as to the original cost of the property, the date of purchase, and the fair market value of the property both before and after the accident.

(ii) In the support of claims for damage to land, trees, buildings, fences, and other improvements and similar property, the statements should show the fair market value, both before and after the accident. In support of claims for damage to crops, the statement should show the number of acres, or other unit measure, of the crops damaged, the normal yield per unit, the gross amount which I would have been realized from such normal yield, and an estimate of the further costs of cultivation, harvesting, and marketing. 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.

(iii) In the case of claims for damage to or loss or destruction of registered or insured mail, the claimant should submit, where possible, the registration or insurance receipt, or an attested copy thereof, showing the amount of fee and postage paid.

(3) Personal injury. In support of claims for personal injury or death, the claimant should submit in triplicate a written report by attending physician, showing the nature and extent of injury, the nature and extent of treatment, and degree of permanent disability, if any, the prognosis, and the period of hospitalization or incapacitation, attaching itemized bills for medical, hospital, or burial expenses actually incurred; and, if claim is made for loss of time or loss of earnings, a written report in triplicate by claimant's employer showing claimant's age, occupation, wage or salary, time lost from work, whether or not a full-time employee, and actual period of employment by dates.

(4) Recoveries from joint tort-feasors. If the claimant has elected to proceed against a third party as a joint tortfeasor, any amount so collected in respect of items of damage which otherwise may properly be included in the claim against the Government will be reported.

(5) Excluded items. Interest, cost of preparation of claims and securing supporting evidence, inconvenience, and similar items may not be included as elements of damage.

(d) Signatures. The claim and all other papers requiring the signature of the claimant should be signed in ink by the claimant personally or by a duly authorized representative and should show

the given name, middle initial, if any, and surname. The signatures should be identical on all papers. The claim, if filed by an agent or legal representative, should be filed in the name of the owner, signed by such agent or legal representative (e. g., John Doe by Richard Roe), show the title or capacity of the person signing and be accompanied by evidence of his authority to file a claim on behalf of claimant as agent, executor, administrator, parent, guardian, or other fiduciary. The claim, if filed by a corporation, should show the title or capacity of the officer signing and be accompanied by documentary evidence of his authority to act.

(e) Place of filing. The claim should be submitted to the commanding officer of the unit involved, if known, otherwise to the commanding officer of the unit or installation within which or nearest to which the accident or incident occurred. If the incident occurs in a foreign country where no unit of the Air Force is stationed, the claim may be submitted to the United States air attache. (f) Withdrawal of claim. If claim is withdrawn, the only papers that may be returned to a claimant are his original claim and such supporting documents as he himself has furnished. In no event will reports of investigation or any other evidence not submitted by the claimant be furnished to him.

§ 836.4 Ascertainment of amount of damages—(a) Property damage, loss, or destruction. (1) If the property has been or can be economically repaired, the measure of damages is the cost of repairs necessary to restore it to substantially the condition in which it was immediately prior to the incident. The property is not considered economically reparable if the cost of repairs exceeds the fair market value immediately prior to the incident less the salvage value of the damaged property.

(2) If the property cannot be economically repaired, the measure of damages is the fair market value immediately prior to the incident less the salvage value.

(3) To determine the net cost of repairs under subparagraph (1) of this paragraph, the fair market value of any salvaged parts or materials should be deducted from the gross cost. If the property is worth more after it has been repaired than immediately prior to the

incident, the amount of appreciation should also be deducted from the gross cost of repairs. However, if the property is worth less than before the incident, the amount of such depreciation should be added to the gross cost.

(4) Loss of use of damaged business, agricultural, or residential property which is economically reparable may be included as an additional item of damages to the extent of the expense actually incurred for appropriate substitute property but only for such period as is reasonably necessary for repairs and provided that idle substitute property of the claimant was not employed. When substitute property is not obtainable from others, other competent evidence such as rental value, if not speculative or remote, may be considered.

(5) The measure of damages for total loss or destruction of registered or insured mail is the fair market value immediately prior to the incident plus the amount of any registration or insurance fee or other special fees, and the amount of postage prepaid. In cases of damage only, or partial loss or destruction, the measure of damages is the fair market value immediately prior to the incident less any salvage, except that, if economically reparable, the measure of damages is the estimated or actual cost of repairs. No prepaid postage or other fees are payable if actual delivery of the parcel or letter is made to the correct addressee.

(6) The measure of damages in cases cognizable under the provisions of 62 Stat. 982; 28 U. S. C. 2671-2680 (formerly the Federal Tort Claims Act) is determined by the law of the place where the act or omission occurred.

(7) In ascertaining the amount of damages, if the claims officer considers it advisable, he should secure additional statements or estimates to supplement those submitted by the claimant.

(b) Personal injury or death. The measure of damages is as provided in the specific regulation under which the claim is payable. All statements and estimates of medical, hospital, and burial expenses should be substantiated by the originals or copies of any bills rendered, and certified as just and correct.

§ 836.5 Transfers and assignments of claims. Ordinarily, transfers and assignments of claims against the United States are null and void by reason of the provisions of the Anti-Assignment Act

(R. S. 3477, as amended; 31 U. S. C. 203), except assignments of claims by operation of law, for example, receivers or trustees in bankruptcy or administrators of estates. However, the provisions of the statute do not apply to claims of subrogees predicated on involuntary assignments, arising under the provisions of 62 Stat. 982; 28 U. S. C. 2671-2680 (formerly the Federal Tort Claims Act). This special exception was announced by the United States Supreme Court in the case of United States v. Aetna Casualty and Surety Company (70 S. ct. 207).

§ 836.6 Participation in prosecution of claims and disclosures of information. Except as required in the discharge of his proper official duties, no person in the claims organization will furnish any information which can be used as the basis of a claim against the United States nor will he in any other way aid or assist in the prosecution of claims against the United States (62 Stat. 697, as amended; 18 U. S. C. 283).

CLAIMS ARISING OUT OF ACTIVITIES OF THE AIR FORCE

AUTHORITY: §§ 836.11 to 836.24 issued under R. S. 161, sec. 202, 61 Stat. 500, as amended; 5 U. S. C. 22, 171a. Interpret or apply sec. 1, 57 Stat. 372, as amended, sec. 1, 59 Stat. 225, sec. 1, 62 Stat. 983, as amended, sec. 1, 64 Stat. 144; 31 U. S. C. 222c, 223b, 28 U. S. C. 2672, 50 U. S. C. 735.

SOURCE: §§ 836.11 to 836.24 appear at 17 F. R. 3322, Apr. 15, 1952, except as otherwise noted.

§ 836.11 Purpose. Sections 836.11 to 836.24 outline the procedure for administrative settlement of claims for damage to or loss or destruction of property, real or personal, or for personal injury or death, caused by Air Force personnel or civilian employees, or otherwise incident to noncombat activities of the Department of the Air Force or of the United States Air Force.

§ 836.12 Definitions. As used in §§ 836.11 to 836.24, the following terms shall be construed in the sense indicated in this section unless the context shows that a different meaning is intended, namely:

(a) Department. Department means the Department of the Air Force.

(b) Air Force. Air Force means the United States Air Force.

(c) Military personnel and civilian employees. Military personnel and civil

ian employees whose acts or omissions may give rise to claims within the scope of §§ 836.11 to 836.24 include all military personnel and civilian employees of the Department and of the Air Force, prisoners of war, and interned enemy aliens engaged in labor for pay, and volunteer workers, and others, serving as employees of the Department or of the Air Force, even though without compensation.

(d) Within the scope of their employment. Acts or omissions of military personnel and civilian employees ordinarily are within the scope of employment if the performance thereof is directed, or if of a kind the performance of which is expressly or impliedly authorized, or if the purpose is, at least in part, to serve the Government. Consideration should be given to all of the attendant facts and circumstances including: the time, place, and purpose of the activity; whether the activity was for 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 ordinarily will not constitute a departure from scope of employment; to have legal effect, it must be a material deviation.

General.

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§ 836.13 Scope-(a) tions 836.11 to 836.24 apply to claims arising on or after September 26, 1947, except claims cognizable under the Federal Tort Claims Act (62 Stat. 982; 28 U. S. C. 2671-2680) (see §§ 836.31 to 836.46), for damage to or loss or destruction of real or personal property, or for reasonable medical, hospital, or burial expenses actually incurred on account of personal injury or death, caused by military personnel or civilian employees of the Department of the Air Force or of the Air Force while acting within the scope of their employment, or otherwise incident to noncombat activities of the Department of the Air Force or of the Air Force, including the claims:

following

(1) Claims for damage to or loss or destruction of registered or insured mail while in the possession of the Air Force.

(2) Claims for damage to or loss or destruction of personal property bailed to the Government.

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(3) Claims for damage to real property incident to the use and occupancy thereof by the Government under a lease, express or implied, or otherwise, except contract claims and claims for payment of rent.

(b) Registered or insured mail. Claims for damage to or loss or destruction of registered or insured mail while in the possession of military authorities, are cognizable under §§ 836.11 to 836.24, even though resulting from criminal acts: Provided, That the damage to or loss or destruction was caused by Air Force military personnel or civilian employees, or otherwise incident to its noncombat activities. Accordingly, claims accruing while the mail is in the possession of the Post Office authorities, or caused by Air Force personnel serving with and bonded to the Post Office Department are not cognizable under the provisions of §§ 836.11 to 836.24. This provision also does not apply to regular mail or "minimum fee" insured mail not requiring an insurance number or receipt.

(c) Bailed personal property. Claims for damage to or loss or destruction of personal property bailed to the Government are cognizable under §§ 836.11 to 836.24, unless by express agreement the bailor has assumed the risk of damage, loss, or destruction and provided that the damage, loss, or destruction was caused by Air Force military personnel or civilian employees. (See §§ 836.17 and 836.24.)

(d) Use and occupancy of real property. Claims for damage to real property incident to the use and occupancy thereof, whether under a lease, express or implied, or otherwise, are cognizable under §§ 836.11 to 836.24: Provided, That the damage was caused by Air Force military personnel or civilian employees, or otherwise incident to its noncombat activities.

(e) Other noncombat activities. In general, the claims within the above category are those arising out of authorized activities which are peculiarly Air Force activities having little parallel in civilian pursuits and to situations which 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

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