(d) Admiralty-tort claims. As indicated above, the Admiralty Division primarily handles admiralty-tort claims. These are claims for damage caused by vessels in the naval service or by other property under the jurisdiction of the Navy, or damage caused by a maritime tort committed by an agent or employee of the Navy, and claims for damage caused by a privately owned vessel to a vessel or property of the Navy (affirmative claims). The Admiralty Division also handles claims for towage and salvage services rendered to a vessel in the naval service.

(e) Admiralty-contract claims. Admiralty-contract claims arising out of the operations of the Military Sealift Command (MSC) are handled by its Office of Counsel. MSC is responsible for the procurement of vessels and space for the commercial ocean transportation of Department of Defense cargo, mail, and personnel. It is also responsible for the maintenance, repair, and alteration of Governmentowned vessels assigned to it. The Office of Counsel, MSC, deals with the various claims of a contract nature which arise out of these operations. These include claims for cargo damage, charter hire, redelivery, general average, and claims arising under MSC ship-repair contracts.

(f) Damage caused by Navy contract stevedores. Office of Counsel, Naval Supply Systems Command, has cognizance of admiralty claims for damage caused by Navy contract stevedores. Under these stevedore contracts, the stevedoring companies are responsible for negligent acts of their employees which result in vessel damage. It is important that the extent of any such damage be accurately determined and promptly reported to the contracting officer having cognizance of the particular stevedore contract involved.

(g) Resolving conflicts. Admiraltytort claims, such as collision, personalinjury, and death claims, are dealt with by the Admiralty Division, irrespective of whether an MSC vessel or other naval vessel is involved. Whether any particular claim is to be handled by JAG or by MSC, therefore, is determined by the nature of the claim. Cases may arise which could be handled by either office. If doubt exists,

such matters should be reported both to JAG and to MSC. An agreement I will then be reached between the Admiralty Division and the Office of Counsel, MSC, as to how the incident should be handled.

§ 752.3 Claims against the Navy.

(a) Settlement authority. 10 U.S.C. 7622 (1970), as amended by Pub. L. 92– 417, 86 Stat. 654, provides settlement authority for

(1) Damage caused by a vessel in the naval service or by other property under the jurisdiction of the Department of the Navy; (2) compensation for towage or salvage service, including contract salvage, rendered to a vessel in the naval service or to other property under the jurisdiction of the Department of the Navy; or (3) damage caused by a maritime tort committed by any agent or employee of the Department of the Navy or by property under the jurisdiction of the Department of the Navy.

of

The limit on the Secretary's settlement authority is a payment $1,000,000. A claim which is settled for an amount over $1,000,000 is certified to Congress. Section 7622 provides that the Secretary may delegate his settlement authority in matters where the amount to be paid is not over $10,000. Under the Secretary's delegation, settlements not exceeding $10,000 may be effected by the Judge Advocate General, Deputy Judge Advocate General, Assistant Judge Advocate General (Civil Law), and the Deputy Assistant Judge Advocate General (Admiralty). Authority has also been delegated to Commander in Chief, U.S. Naval Forces, Europe, and to Commander, Sixth Fleet, to pay admiralty claims against the Navy not exceeding $1,000, and to Commandant, TENTH Naval District, for damage to fishing equipment arising in CulebraVieques waters, not to exceed $1,000.

(b) Settlement is final. The legislation specifically authorizes the Secretary to settle, compromise, and pay claims. The settlement, upon acceptance of payment by the claimant, is final and conclusive for all purposes.

(c) Settlement procedures. Where the amount paid is over $10,000, after agreement is reached with counsel or claimants, the procedure is to prepare a settlement recommendation for the

approval of the Secretary of the Navy. When settlement has been approved, the voucher required for effecting payment is prepared. The settlement check is then exchanged, in keeping with the commercial practice, for executed releases. In some situations, where the exchange of documents is impracticable, a claimant is requested to forward the executed release by mail, on the understanding that the release does not become effective until the check is received in payment. Claims settled under 10 U.S.C. 7622 are paid out of the appropriation "Claims, Department of Defense."

(d) Limitation period. The Secretary's settlement authorization is subject to a two-year limitation. This limitation is not extended by the filing of claim nor by negotiations or correspondence. A settlement agreement must be reached before the end of the two-year period. If settlement is not accomplished, then the claimant must file suit under the appropriate statute to avoid the limitation bar. The agreement reached in negotiations must receive the approval of the Secretary of the Navy or his designee, depending on the amount involved, prior to the expiration of the two-year period.

(e) Matters in litigation. When suit is filed, the matter comes within the cognizance of the Department of Justice, and the Secretary of the Navy is no longer able to entertain a claim or to make administrative settlement.

§ 752.4 Affirmative claims.

(a) Settlement authority. The Navy has the same authority to settle affirmative admiralty claims as it does claims against the Navy. The statute conferring this authorization is codified in 10 U.S.C. 7623 (1970), and is the reciprocal of 10 U.S.C. 7622 (1970), referred to in § 752.3.

(b) Scope. 10 U.S.C. 7623 is a tort claims-settlement statute. It is not limited to affirmative claims arising out of collision, but embraces all instances of damage caused by a vessel or floating object to property of the United States under the jurisdiction of the Department of the Navy. Perhaps the most frequent instance is where a privately owned vessel damages a Navy pier or shore structure. To eliminate

any issue of whether the damaging instrumentality was a vessel, the words "or floating object" were included.

(c) Statute of limitation. The United States is subject to a three-year statute of limitation when it asserts an affirmative claim for money damages grounded in tort. This limitation is subject to the usual exclusions, such as inability to prosecute due to war, unavailability of the "res" or defendant, and certain exemptions from legal process (28 U.S.C. 2415, 2416 (1970)).

(d) Litigation. 10 U.S.C. 7623 does not apply to any claim where suit is filed. If the Admiralty Division is unable to effect settlement, the matter is referred to the Department of Justice for the filing of a complaint against the offending party. Thereafter, as in the case of adverse litigated claims, the Navy has no further authority to effect settlement.

§ 752.5 Salvage.

(a) Scope. This section relates to salvage claims against or by the Navy for compensation for towage and salvage services, including contract salvage, rendered to a vessel in the naval service or to other property under the jurisdiction of the Department of the Navy, or for salvage services rendered by the Department of the Navy. Suits for salvage may be maintained under the Public Vessels Act, and salvage claims are within the Secretary of the Navy's administrative-settlement authority under 10 U.S.C. 7622. Salvage claims against the Navy are reported to and processed by the Judge Advocate General (Admiralty Division). Both claims and suits for salvage against the United States are subject to the two-year limitation of the Public Vessels Act and the Navy's settlement authority.

(b) Affirmative claims. Authorization for the settlement of affirmative salvage claims is contained in 10 U.S.C. 7365 (1970). Prosecution of such claims is handled in the first instance by the Assistant Supervisor of Salvage, U.S. Navy, One World Trade Center, New York, NY 10048. Salvage claims are referred to the Admiralty Division only if the Assistant Supervi

sor

of Salvage is unsuccessful in

755.3 Claims not cognizable.

755.4 Limitations of applications.

755.5 Complaint by injured party. 755.6 Investigation.

755.7 Action to be taken by commanding officer and higher authority where offenders are members of one command. 755.8 Action to be taken by commanding officer and higher authority where offenders are members of different commands.

755.9 Reconsideration.

755.10 Effect of court-martial proceedings.

AUTHORITY: 5 U.S.C. 301; 10 U.S.C. 939, 5031, and 5148; E.O. 11476, as reported in 3 CFR, 1969 Comp., p. 132; 32 CFR 700.206 and 700.1202.

SOURCE: 35 FR 13109, Aug. 18, 1970, unless otherwise noted.

NOTE: This Part 755 is Chapter X of the Manual of the Judge Advocate General of the Navy.

NOTE: The Uniform Code of Military Justice (10 U.S.C. 801-940) is referred to in this Part 755 as "the UCMJ". The Manual for Courts-Martial, United States, 1969 (E.O. 11476 of June 19, 1969) is referred to in this Part 755 as "MCM 1969".

§ 755.1 Statutory authority.

This part outlines procedures for administrative settlement of claims when property is willfully damaged or wrongfully taken by members of the armed forces (Article 139, Uniform Code of Military Justice, 10 U.S.C. 939).

§ 755.2 Scope.

Claims for damage, loss, or destruction of property caused by a person or persons in the naval service, subject to the limitations in this section, are

within the provisions of Article 139, UCMJ only if such damage, loss, or destruction is caused by riotous conduct, acts of depredation, or acts showing such reckless and wanton disregard of the property rights of others that a willful damage or destruction is implied. Acts of the type punishable under Article 109, UCMJ are cognizable under Article 139. However, redress for damages resulting from such acts is not to be confused with disciplinary action under Article 109 or any other article of the UCMJ. (See § 755.10.) Charges against pay under the regulations in this part shall be made against the pay of persons shown to have been principal offenders or accessories. Membership in a certain organization or detachment and presence at the scene at the time the damages were sustained are not sufficient in themselves to make a person a principal or an accessory. There must be some evidence of active or passive participation.

§ 755.3 Claims not cognizable.

The following claims are not payable under this part.

(a) Claims payable under other regulations: Claims for damage, loss, or destruction of property which are payable by the Government under the provisions of the general, personnel, or foreign claims regulations set forth in Parts 750 and 751 of this subchapter and Chapter XXII of the Manual of the Judge Advocate General, or under admiralty claims procedure set forth in Part 752 of this subchapter. No charge will be made under these regulations against the pay of any person in the naval service to reimburse the claimant or the Government for payments warranted under other regulations or other statutes.

(b) Claims resulting from simple negligence: Claims for damage, loss, or destruction of property resulting from simple negligence, whether or not within the scope of employment.

(c) Claims of subrogees: Any portion of a loss covered by insurance, whether carried by the offender, the claimant, or a third party.

(d) Claims for personal injury or death.

(e) Acts or omissions within the scope of employment: Claims for damage, loss, or destruction of property resulting from acts or omissions, while the offender is acting within the scope of his employment.

(f) Absence of riotous or violent conduct: Claims arising from larceny, wrongful appropriation, forgery, or deceit, where the wrongful taking is accomplished under conditions of stealth, deception, trickery, or device, unaccompanied by riotous or violent conduct; or claims for damages arising from breach of contract.

(g) Government property: Reimbursement for damage, loss, or destruction of property of the United States.

(1 CFR 18.14, and Part 21, Subpart B)

[38 FR 6028, Mar. 6, 1973, as amended at 45 FR 8600, Feb. 8, 1980]

§ 755.4 Limitations of applications.

(a) Time limitations. In order for a claim to be cognizable under Article 139, UCMJ, a complaint out of which such claim arises must have been made to military authority within 30 days of the date of the incident.

(b) Aliens. Claims of aliens under Article 139, UCMJ, in addition to the exclusionary limitations of the regulations in this part, are subject to all laws and regulations controlling payments to aliens in effect at the time of action on the claim. If the claimant is a national of a country at war with the United States, or an ally of such foreign country, the claim will not be approved unless it be determined that the claimant is friendly to the United States.

(c) Limitation of amount of assessment. No assessment exceeding the amount of $250 will be made against the pay of any offender under the provisions of Article 139, UCMJ for any single act or incident.

(d) Acts of property owner. When the acts or omissions of the owner, his lessee, or his agent were a proximate contributing factor to the loss or damage of the property involved, assessment will not be made against any offender in excess of that amount for which he is found to be directly and solely responsible.

(e) Only direct damages considered. Assessment will be made only for direct physical damages. Indirect, remote, or inconsequential damage will not be considered.

§ 755.5 Complaint by injured party.

(a) Ordering investigation. Whenever a complaint is made to a commanding officer that willful damage has been done to property or that property has been wrongfully taken by members of the naval service, and the nature of the damage or wrongful taking is within the purview of Article 139, UCMJ, the commanding officer, if he has authority to convene special courts-martial and if an alleged offender is a member of his command, shall order an investigation of the matter. If the alleged offender is not a member of his command, he shall forward the complaint and all evidence which can be obtained locally to the commanding officer of the alleged offender. If the command of an alleged offender is not known, the complaint and all evidence which can be obtained locally shall be sent to the Chief of Naval Personnel or the Commandant of the Marine Corps, whichever is appropriate, for forwarding. If the commanding officer of an alleged offender does not have authority to convene special courts-martial, he shall forward the complaint to his superior with such authority, who shall, for the purposes of Article 139, UCMJ, be considered the commanding officer of the offender. If the incident complained of occurred at a place remote from the command of the alleged offender, and the commanding officer of the alleged offender so requests, the commanding officer of the naval activity located nearest the place of the incident shall order an investigation of the matter as required by Article 139, UCMJ and the regulations in this part. Upon completion of such investigation, the record thereof shall be forwarded to the commanding officer who requested the investigation for action required by § 755.7. Where more than one offender or more than one command is involved, the matter shall be handled by a single investigation, if practicable. In this connection see Section 0107 of the

Manual of the Judge Advocate General and § 755.8 of this subchapter.

(b) Advice to claimant. The commanding officer who orders the investigation of the complaint shall fully advise the claimant by the most practicable means, that:

(1) In order for a claim to be cognizable under Article 139, UCMJ, the claimant must be within the provisions of § 750.50.

(2) A claim shall be presented, if practicable, in triplicate. It should contain a statement setting forth the amount of the claim, insurance coverage, and available detailed facts and circumstances surrounding the incident from which the claim arose. When there is more than one claimant as a result of a single incident, each such claimant must file a claim separately and individually. The claim shall be personally signed by the claimant or his duly authorized agent or representative. The appropriate portions of § 750.13 set forth additional information and evidence which ordinarily should be supplied by a person making claim for damage or loss of property.

(3) Such claim must be submitted to the investigating body as expeditiously as possible and not later than 30 days from the date of this advice.

(1 CFR 18.14, and Part 21, Subpart B)

[35 FR 13109, Aug. 18, 1970, as amended at 41 FR 26866, June 30, 1976; 45 FR 8600, Feb. 8, 1980]

8755.6 Investigation.

(a) General. The procedure for redress of injuries to property (Article 139, UCMJ) is accomplished by the use of a formal investigation or a court of inquiry. The claim is the subject of inquiry by either of these bodies, and the rules governing the appropriate type of investigation are applicable.

(b) Fact-finding body. The fact-finding body appointed to investigate a complaint under Article 139, UCMJ shall consist of from one to three commissioned officers. Subject to the provisions of the regulations in this part, pertinent portions of §§ 750.6 and 750.7 respecting matters to be ascertained in investigating property damage are applicable. The claim of the owner or custodian of the proper

ty involved shall be made an enclosure to the record of proceedings of the fact-finding body.

and

(c) Statutory requirements powers. Under the authority of Article 139, UCMJ, witnesses may be summoned to testify at the investigation in the same manner as for courts-martial. See paragraph 115, MCM. However, when an investigation is convened to inquire into other matters in addition to investigating a complaint under Article 139, UCMJ, the power of subpoena shall not be used to compel the attendance of witnesses whose testimony is not directly related to the Article 139 claim. Witnesses before such investigations shall be examined on their oath or affirmation. Depositions, documents, and other evidence may be received in evidence.

(d) Rights of an alleged offender. An alleged offender shall, if practicable, be accorded the rights of a party. See Subpart J of Part 719 of this subchapter. If such rights are not accorded an alleged offender, and such rights have not been waived by him, he shall, prior to any charge being made against his pay, be afforded the opportunity to inspect the record of proceedings or a copy thereof. He shall, in such case, submit a signed statement in regard thereto or to the effect that he does not desire to make such a statement. If, by reason of unauthorized absence of other factors, the rights of a party cannot be afforded to an alleged offender, a full and complete report of the reasons therefor shall be included in the record of proceedings. If, at the time of the convening of an Article 139 investigation, the identity of an offender is unknown, the investigation shall proceed with the subject matter of the inquiry. However, as soon as the identity of the offender becomes known, such person shall be called before the investigation (unless such action is impractical by reason of unauthorized absence or other factors), designated as a party to the investigation, and accorded his rights as such. Such proceedings and any waiver on the part of the offender shall be recorded verbatim. A person in an unauthorized absence or desertion status shall, while in such status, be considered as having waived his rights as a