Sec.

836.164 Preparation of decisions and pro

cedures.

836.165 Payments pursuant to a decision.

GENERAL PROVISIONS

AUTHORITY NOTE: The citation of authority for §§ 836.1 to 836.6 is changed to read:

AUTHORITY: §§ 836.1 to 836.6 issued under sec. 8012, 70A Stat. 488; 10 U. S. C. 8012. Interpret or apply sec. 1, 62 Stat. 983, as amended, secs. 939, 2731-2735, 70A Stat. 78, 152-155; 28 U. S. C. 2672, 10 U. S. C. 939, 2731-2735.

CLAIMS ARISING OUT OF ACTIVITIES OF THE

AIR FORCE

AUTHORITY NOTE: The citation of authority for §§ 836.11 to 836.24 is changed to read:

AUTHORITY: §§ 836.11 to 836.24 issued under sec. 8012, 70A Stat. 488; 10 U. S. C. 8012. Interpret or apply sec. 1, 62 Stat. 983, as amended, secs. 939, 2731-2735, 70A Stat. 78, 152-155; 28 U. S. C. 2672, 10 U. S. C. 939, 2731-2735.

TORT CLAIMS

AUTHORITY NOTE: The citation of authority for §§ 836.31 to 836.46 is changed to read: AUTHORITY: §§ 836.31 to 836.46 issued under sec. 8012, 70A Stat. 488; 10 U. S. C. 8012. Interpret or apply sec. 1. 62 Stat. 983, as amended, secs. 939, 2731-2735, 70A Stat. 78, 152-155; 28 U. S. C. 2672, 10 U. S. C. 939, 2731-2735.

CLAIMS UNDER ARTICLE 139, UNIFORM CODE OF MILITARY JUSTICE

AUTHORITY NOTE: The citation of authority for §§ 836.51 to 836.56 is changed to read:

AUTHORITY: §§ 836.51 to 836.56 issued under sec. 8012, 70A Stat. 488; 10 U. S. C. 8012. Interpret or apply sec. 939, 70A Stat.. 78; 10 U.S. C. 939.

CLAIMS ARISING OUTSIDE THE UNITED STATES [REVISED]

AUTHORITY: §§ 836.61 to 836.77 issued under sec. 1, 70A Stat. 488; 10 U. S. C. 8012. Interpret or apply sec. 1, 70A Stat. 154, 155; 10 U. S. C. 2734, 2735.

SOURCE: §§ 836.61 to 836.77 appear at 23 F. R. 5723, July 30, 1958.

NOTE: §§ 836.61 to 836.77 supersede former §§ 836.61 to 836.83.

§ 836.61 Purpose. Sections 836.61 to 836.77 state the procedures for settling and paying claims made against the United States by inhabitants of foreign countries because of death, personal injury, or damage to or loss of public or private property, real or personal. Sections 836.61 to 836.77 apply only in those cases where such claims arise outside the United States, its Territories and

possessions, and are caused by military personnel or civilian employees of the Air Force.

§ 836.62

Definitions—(a) Claims. Demands for payment submitted by individuals, partnerships, associations, or corporations, including foreign countries, states, territories, and other political subdivisions of such countries, other than demands for payment that arise under ordinary obligations incurred in procuring regular services or supplies (contract claims).

(b) Civilian employees. Civilian employees 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 Air Force without compensation.

(c) Inhabitant of a foreign country. A person who dwells or resides in a foreign country. Neither citizenship nor domicile is required. A foreign country includes any place under the jurisdiction of the United States in a foreign country. A person includes a corporation or other business association. A corporation or other business association is not necessarily excluded as an inhabitant because organized under United States law.

(d) Military personnel. Forces or individual members of the Air Force.

(e) Noncombat activities. Authorized activities which are peculiarly Air Force activities that have little parallel in civilian pursuits or which historically have been considered as furnishing proper basis for paying claims-such as maneuvers, special field exercises, using explosives, firing guns or other weapons, practice bombings, operating aircraft and missiles, using balloons, using animals, using equipment or devices having latent mechanical defects, moving combat or other vehicles designed especially for military use, and using and occupying real estate.

(f) Settle. Consider, ascertain, adjust, determine, and dispose of a claim, whether by approval or disapproval in whole or in part.

§ 836.63 Claims payable. Unless otherwise prescribed, claims for death, personal injury, or damage to or loss of property, real or personal, may be settled under §§ 836.61 to 836.77.

(a) Death. Only one claim arises for all beneficiaries. The amount allowed, to the extent found practicable, will be

apportioned among the beneficiaries as prescribed by the law or custom of the situs where the accident or incident resulting in death occurred.

(b) Property. Included in the property for which damage claims may be settled are real property used and occupied under lease (express or implied) or otherwise, and personal property loaned, rented, or otherwise bailed to the United States under an agreement (express or implied), unless the owner has expressly assumed the risk of damage or loss. Claims for damage or loss enforceable under a lease or other contract may be settled under §§ 836.61 to 836.77, or under contractual procedures, as deemed in the best interest of the United States. Claims for rent, as such, may not be settled under §§ 836.61 to 836.77, but allowances may be made for the use of property arising out of trespass or other tort, even though claimed as rent.

§ 836.64 Claims not payable. A claim I will not be settled under §§ 836.61 to 836.77 if it:

(a) Results directly or indirectly from combat activities;

(b) Involves personal injury or death and arises out of any working accident covered by any workmen's compensation law or regulation, whether Federal Employees' Compensation Act of September 7, 1916 (39 Stat. 742, as amended; 5 U. S. C. 751), Longshoremen's and Harbor Workers' Compensation Act (44 Stat. 1424; 33 U. S. C. 901); or law or custom of the situs which provides compensation or social security benefits; or when similar benefits are provided by insurance under applicable regulations, or pursuant to United States contract: Provided, That this provision has no application to claims for property damage, or where there is a mandatory provision in the law of the situs requiring the claimant to reimburse the foreign government agency out of any recovery;

(c) Is waived or assumed by a foreign country under a treaty or international agreement, or is cognizable under a treaty or agreement which requires settlement by a foreign country;

(d) Is purely contractual in character;

(e) Is based on the negligence of a United States concessionnaire or other independent contractor or his employees;

31038--59- 4

(f) Arises from private contractual or domestic obligations;

(g) Arises out of the activities of dependents of military personnel, or their servants;

(h) Is based solely on compassionate grounds;

(i) Is a bastardy claim;

(j) Is for patent or copyright infringement;

(k) Arose before July 29, 1956 and the incident occurred outside a foreign country, its Territories, possessions, or territorial waters (open seas) or the claimant was an inhabitant of a foreign country other than the one in which the accident occurred; or

(1) Arose in an "occupied country" before a treaty or international agreement relating to claims. (Such claims usually are paid out of funds chargeable to the economy of the occupied country concerned under an agreement.)

§ 836.65 Claims under other laws and regulations-(a) Sections 836.11 to 836.24 (AFR 112-3). Claims will be settled under §§ 836.61 to 836.77, if applicable, although they might otherwise be settled under §§ 836.11 to 836.24.

(b) Sections 836.51 to 836.56 (AFR 112-5). Claims which are within the scope of §§ 836.61 to 836.77 and also within the scope of §§ 836.51 to 836.56 may be processed under the provisions of §§ 836.51 to 836.56 or §§ 836.61 to 836.77, or under both, as the facts and circumstances may warrant: Provided, That such settlement can be accomplished without defeating the purpose of the Foreign Claims Act and §§ 836.61 to 836.77.

(c) Sections 836.90 to 836.99 and and 836.116 to 836.120 (AFR's 112-7 and 176-8). Claims which may be settled under §§ 836.90 to 836.99 or §§ 836.116 to 836.120 will not be settled under §§ 836.61 to 836.77.

(d) Sections 836.141 to 836.148 (AFR 112-12). Claims which may be settled under §§ 836.141 to 836.148 may be settied under §§ 836.61 to 836.77 only when specifically authorized by The Judge Advocate General in each case. Authority may be requested by communication containing a summary of the facts, without forwarding the claim file.

§ 836.66 Claims under treaties and agreements. When a foreign government is responsible for settling claims

Page 33

against the United States under Article VIII of the Agreement Regarding the Status of Forces of Parties to the North Atlantic Treaty; under Article XVIII of the Japanese Administrative Agreement; or under a similar treaty or international agreement:

(a) Air Force authorities generally will be required to obtain and furnish foreign countries relevant evidence from United States sources, except as limited by Air Force security regulations. Reasonable requests for other assistance in investigating claims may also be complied with.

(b) Where claims are processed under a treaty or other international agreement and the Air Force has been assigned claims responsibility, the United States Sending State Office, or comparable office for claims in foreign countries, will send a copy of each voucher for reimbursement (68 Stat. 1006; 31 U. S. C. 2241-2) with a copy of the bill submitted by the foreign government. These copies will be forwarded by a letter of transmittal indicating the number and total amount of claims disapproved by the foreign government to:

The Judge Advocate General
Headquarters USAF

Attn: Chief, Claims Division
Washington 25, D. C.

§ 836.67 Conditions of payment. (a) Acts or omissions that create a condition without which the accident or incident could not have occurred but are not its proximate cause, will not constitute a proper basis for payment, even though they violate the law of the situs or military regulation. A claim may be approved under §§ 836.61 to 836.77 when the act or omission (except for so-called "other noncombat activities") that caused the injury, death, or damage to or loss of property was negligent, wrongful, or otherwise involved fault and was caused by:

(1) Military personnel;

(2) Civilian employees who are citizens of the United States;

(3) Civilian employees who are not citizens of the United States and were hired in one country for employment in another; or

(4) Civilian employees who are not citizens of the United States, other than those in subparagraph (3) of this paragraph, acting within the scope of their employment.

(b) The law or custom of the situs pertaining to contributory or comparative negligence, and to joint tort-feasors, will be applied so far as practicable to determine liability.

(c) Scope of employment will be determined by United States law.

§ 836.68 Damages allowed. Generally, in determining the proper elements and amount of damages, the law and custom of the situs will be applied, but neither court costs, including attorney's fees, bail or the like, punitive or moral damages, nor interest is allowable. Items properly allowable in personal injury claims include actual and reasonable medical and hospital expenses, reasonable compensation for physical pain and suffering and disability, and loss of earning capacity, and, if death results, actual and reasonable burial expenses and compensation for loss of life. Property damage or loss is governed by §§ 836.1 to 836.6.

§ 836.69 When claim must be presented. A claim must be presented within 1 year after the accident or incident from which it arose to either the appropriate United States or foreign government officials. (See § 836.66)

§ 836.70 Who presents claim-(a) Proper claimant. Each claimant, and, in a claim based on death, the decedent, must have been an inhabitant of a foreign country at the time of the accident or incident and not otherwise barred from allowance of a claim. (For claims arising before July 29, 1956, the claimant must have been an inhabitant of the foreign country in which the accident or incident occurred; a transient is not a proper claimant. An inhabitant of any part or subdivision of a foreign country is considered to have been an inhabitant of the foreign country for any claim arising in any part of that country.)

(b) Claimants excluded. (1) A national, or a corporation controlled by a national, of a country at war or engaged in armed conflict with the United States, or of any country allied with such enemy country, unless the foreign claims commission considering the claim or the local military commander determines that the claimant was at the time of the accident or incident, and is, friendly to the United States.

(2) Members and civilian employees of the Armed Forces of the United States and their dependents who are inhabitants of the United States and in a for

eign country primarily because of their sponsor's or their own Armed Forces orders.

(3) United States citizens not inhabitants of a foreign country.

(4) Persons whose injuries are caused under circumstances where compensation or similar benefits are provided under law, regulation, or custom. (See § 836.64 (b).)

(c) Insurers and other subrogees. An insurer or other subrogee may not present a claim in his own name. A claim for the entire amount of damage or injury suffered will be presented by, and settlement made solely with, the insured, without regard to the insurance; not with the insurer or with both the insured and the insurer. This leaves undisturbed, as between the parties, the rights of the insured and of the insurer or another who has become subrogated to the rights of the owners of the property lost or damaged, or of the person who is injured or whose death results. This permits the United States to settle with a single claimant, and no inquiry into or determination of the relative rights of the parties will be made.

§ 836.71 Form of claim. A claim may be presented orally but, before approval, must be presented in writing and signed by the claimant or his authorized agent or attorney. Written claims should be presented on Standard Form 95, “Claim for Damage or Injury," but any written claim will be considered if it gives a reasonably definite indication of the time, place, and nature of an accident or incident and an estimate or statement of the amount claimed. The amount claimed will be expressed in terms of the currency of the situs and, if allowed, will be paid in the currency of the country either in which the accident or incident occurred or in which the claimant was or is an inhabitant.

§ 836.72 How claims are settled. (a) Claims will be settled or forwarded as herein directed, or in accordance with regulations and statutes described in §§ 836.65 and 836.66. Claims under §§ 836.61 to 836.77 and 836.11 to 836.24 will be settled by Air Force foreign claims commissions if within their monetary jurisdiction.

(b) To permit the prompt settlement of claims within reasonable proximity to the places where accidents or incidents occur, The Judge Advocate General may

authorize the appointment of one or more commissions in each foreign country where Air Force personnel are stationed or claims may arise.

§ 836.73 Monetary jurisdiction. Unless specifically limited in the appointing orders, a commission of one member has authority to settle claims not over $1,000. A commission of three members has authority to settle claims presented in amounts not over $15,000, and claims presented in amounts over $15,000 determined by the Secretary of the Air Force or his designee to be meritorious in an amount not over $15,000. When the commission was appointed by the United States Air Forces in Europe or the Pacific Air Forces, any settlement allowance for over $5,000 will be subject also to the approval of the appointing authority, or his Director of Claims. When the commission was otherwise appointed, such settlement allowances will be subject to the approval of the Chief or Assistant Chief, Claims Division, Office of The Judge Advocate General. When such a claim is settled by disapproval, no approval action is required and the commission need only forward one complete claim file. (See § 836.75.) When a commission settles a claim by an allowance of over $5,000, the approving authority may:

(a) Approve the whole allowance or any lesser amount over $5,000 (approval authorizes payment); or

(b) Disapprove the allowance in any amount over $5,000 and return the claim file, with the necessary comment and recommendation, to the commission for its consideration and action.

§ 836.74 How claims are processed. When a commission receives a claim and allied documents, it will consider the claim and determine how it should be processed for settlement. (See §§ 836.1 to 836.6.) If the claim was not presented within 1 year, the claimant will be advised by the commission that the claim is barred. A claim otherwise within §§ 836.61 to 836.77 but not presented within 1 year will not be settled under §§ 836.11 to 836.24. If necessary, the commission will conduct a further investigation or refer the claim to appropriate authorities for investigation. It may confer with the claimant to resolve or determine facts and, if deemed in the best interest of the Government and permitted by the situation, conduct a hearing and take testimony. Claims under

other laws, treaties, agreements or regulations, or claims in excess of monetary limits, will be forwarded promptly to the proper authorities.

§ 836.75 What action commissions take. The action of a commission on a claim under §§ 836.61 to 836.77 and §§ 836.11 to 836.24 will be included in a standard seven-paragraph memorandum or certificate opinion, as appropriate. Memorandum opinions will include findings on all pertinent factual and legal questions. The opinion will clearly state the reasons when a claim is disapproved; and, when a claim is approved in whole or in part, the opinion will include the amount allowed for each item, calculations or explanations of the differences between amounts claimed and amounts approved, and citations of local law or custom, when applicable. For budget and record purposes, all awards and settlement agreements will be expressed in the currency of the situs with an approximate dollar amount in parentheses immediately following. They will also include the rate of exchange.

(a) Effect. The settlement action of a commission upon claims within its jurisdiction is final and conclusive.

(b) Notice. The claimant will be notified by letter of the commission's settlement action and the reasons therefor on a claim within its jurisdiction, where the claim is disapproved or the amount approved is less than the amount claimed. Copies of the opinion or action will not be furnished the claimant.

(c) Reconsideration. A commission may reconsider its settlement at any time before payment. When the commission is composed of different personnel than at the time of the original action, settlement may be reconsidered only upon presentation of new and material evidence, or to correct fraud, collusion, errors in calculation, or other mistakes. The opinion of a commission on reconsideration will state the reason for the reconsideration.

§ 836.76 Claims over $1,000 and $15,000. Claims over the $1,000 limit of

diction of a commission will nevertheless be considered by a three-man commission and forwarded promptly, through appropriate claims channels, to the Chief, Claims Division, Office of The Judge Advocate General, with supporting papers, findings of fact, recommendations, and opinion as to the action to be taken by the Secretary of the Air Force.

§ 836.77 Cross servicing claims. Any claim, whether arising from activities of the Army, Navy, Air Force, Marine Corps, or Coast Guard (when operating as a service in the Navy) may, upon request by the service concerned, be settled by a commission appointed by the Secretary of the Air Force or his. designee, in accordance with §§ 836 61 to 836.77. Claims arising after July 28, 1956 from accidents or incidents caused by a civilian employee of the Department of Defense, other than a civilian employee of the Department of the Army, Navy, or Air Force, may be settled and paid under §§ 836.61 to 836.77 by Air Force commissions. The cross servicing of claims is mandatory when the Air Force has been assigned sole responsibility for the settlement of claims in a designated foreign country or oversea area. A claim arising from Air Force activities in a foreign country where another service has been assigned responsibility for its settlement will be sent to the appropriate claims office of that service for settlement.

PERSONNEL CLAIMS [Revised]

AUTHORITY: § 836.90 to 836.101 issued under sec. 8012, 70A Stat. 488; 10 U. S. C. 8012. Interpret or apply sec. 2732, 70A Stat. 152; 10 U. S. C. 2732.

SOURCE: §§ 836.90 to 836.101 appear at 22 F. R. 4578, June 28, 1957, except as otherwise noted.

NOTE: Former §§ 836.90 to 836.108 are superseded by §§ 836.90 to 836.101.

§ 836.90 Purpose. Sections 836.90 to 836.101 govern the administrative settlement of claims filed by military and civilian personnel of the Department of the Air Force for personal property damaged or lost incident to their service.

§ 836.91 Claims payable-(a) General. Any claim falling within the statutory provisions of 10 U. S. C. 2732, as amended, and not excluded herein, may be submitted for consideration and, in proper cases, approved for payment in amount not more than $6,500.

an