Page 131 - Law of Peace, Volume ,

Pam 27-161-1

of need not be within the scope of employment of the in- employees attached to such forces. 52 Many of the peace
dividual soldier or civilian employee. 47 Claims for treaties concluded after World War I1 contained provi-
damages caused by employees of the United States who sions for the release of the United States and other allied
are not citizens thereof must be within the scope of their nations from responsibility for settlement of spedied
employment. Finally, claims incident to combat opera- classes of claims. 53
tions are not payable under the Foreign Claims Act. 48 (7) Some treaties and agreements provide that the
(2) It should be noted that these statutory provisions United States will pay just and reasonable compensation in
are quite independent of any diplomatic overtures that settlement of civil claims arising out of acts or omissions
may be made by a foreign government as a result of viola- of members of the United States forces, with claims to be
tions of international law by the United States. The United processed and settled in accordance with applicable provi-
States is willing to accept responsibility for the conduct of sions of United States law. 54 Under such agreements,
members of its military services and United States citizens claims would be settled under the "Foreign Claims Act"
employed by the military departments while they are in or, if the claimant was not an inhabitant of a foreign coun-
foreign countries. 49 try, the "Military Claims Act."
(3) The Foreign Claims Act does not apply where d. Claims Under NATO SOFA. 55 Article Vm of the
there is an agreement establishing a specific procedure for Status of Forces Agreement of the North Atlantic Treaty
claims adjudication and settlement. However, such agree- Organization covers the claims formula. The formula es-
ments may contemplate recourse to this statute in certain tablished may be divided into three parts: :
classes of claims, such as claims for injuries caused by acts (1) Damages to foreign government;pkoperty in the
not done within the scope of employment of the in- performance of official duty. Claims waived entirely in-
clude damage caused to military property of one state by
dividual wrongdoer. 50
the armed forces of the other state in comection with the
(4) Applicable treaties and agreements may include
operation of the North Atlantic Treaty; injury or death
those with the country where the incident occurred or
suffered by any member of the armed service while
with the country of which the claimant is an inhabitant or engaged in the performance of official duties. Claims
national. If a claim against the United States is waived or are waived, if under $1,400, for damage caused to
assumed by a foreign government or if the foreign government property, other than military, of one state by
government has agreed to hold the UrLA 2:zs harm- the armed forces of the other in comection with the
less from such a claim, the foreign claims commission operation of the North Atlantic Treaty.
should not consider and settle the claim but should refer (2) Damage or idury to third parties in the perform-
the claimant to the foreign government. ance of official duties. In such cases, the "official duty"
(5) During and after World War II, the United determination is usually made by the sending State and
States entered into treaties and agreement with the the claim forwarded to the receiving State for the ad-
governments of some foreign nations providing for the judication of liability. If the claim is allowed, payment is
mutual waiver of certain classes of claims arising out of ac- made by the receiving State, and thereafter the receiving
State is reimbursed in the amount of 75 percent of its costs
tivities of the forces of the two countries.
by the sending State.
(6) In return for a lump sum payment by the United
(3) Damages or iqjuries not caused in the perform-
States, the government of Korea discharged and agreed to
ance of official duties. The authorities of the receiving
hold harmless the United States, its officials, employees,
State assess the damages in such a case and forward their
agencies or instrumentalities, nationals, and organizations
report to the sending State. The sending State then decides
from claims arising as a result of occupation of Korea by if it will offer an ex gratia payment to the claimant in full
the unit& States Army during the period prior to 1 July satisfaction of the claim. This procedure does not prevent
1948. 51 In return for economic and military assistance the claimant from suing the member of the force in a civil
provided by the United States during and after World War proceeding or in a combination civil-criminal proceeding.
II, France agreed to process and pay unpaid claims of
French residents arising out of acts or omissions in France 52. 61 Stat. 417 5 (1947), T.I.A.S. No. 1928. The accepting of
and French overseas territories prior to 1 July 1946 of responsibility for unpaid tort type claims was only a small consideration
involved in this agreement. See JAGD/D-5419638 (Nov. 24, 1954)
members of United States' armed forces and civilian
wherein it was held that a claim of an inhabitant of Tunisia for the death
of his daughter during World War I1 may be presented by claimant to
47. Id. at 287. the French Government.
48. Id. at 289. 53. 61 Stat. 1245 (1947), T.I.A.S. No. 1648. See also 61 Stat. 4168
49. Id. at 286. (1947), T.I.A.S. No. 1920and 61 Stat. 4171 (1947), T.I.A.S. No. 1921.
50. Id. at 289. For a complete discussion of claims of this nature, 54. Agreement with Federation of the West Indies, Feb. 10, 1961,
see DA Pam 27-162, Claims (1974). 12 U.S.T. 408 (1961), T.I.A.S. No. 4734.
51. 62 Stat. 3242 (1948), T.I.A.S. No. 1851. The release here ex- 55. For a comprehensive discussion of NATO SOFA claims, see
tended beyond claims of a tort nature. chapter 10.