Quantcast Loss Incident to Noncombat Military Activities

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Foreign Claims Act
Legalman 3 & 2 - Navy Lawyer / Jag training guide manuals
Excluded Classes of Claimants - 14134_331
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 12-22

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