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the scope of their employment. Although MCA
regulatations do not specifically require the claimant to
establish governmental negligence to be able to recover
damages under the MCA, OJAG has opined informally
that the term caused by means negligently caused by.
The concept, then, of causation under the MCA is the
same as that required under the FTCA. Also, the scope
of employment concept under the MCA is identical to
that required under the FTCA claims.
The Department of the Navy also is liable under the
MCA for injury, death, or property damage incident to
noncombat activities of a peculiarly military nature.
Examples include claims such as those arising out of
maneuvers, artillery and bombing exercises, naval
exhibitions, aircraft and missile operations, and sonic
booms. Under this second theory of MCA liability, the
claims need not show that the activities were
belligerently conducted. In fact, the claimant’s losses
need not be traced to the conduct of any specific federal
employees. The scope of employment concept does not
apply.
The MCA applies worldwide. If a claim arising in
a foreign country is cognizable under the FCA, however,
it will be processed under that statute and not as an MCA
claim. If the claim is denied, the claimant does not have
the right to sue.
EXCLUSIONS FROM LIABILITY
As with FTCA claims, there are three general
categories of exclusions from liability under the MCA:
certain exempted activities; claims cognizable under
other claims statutes; and certain excluded classes of
Claimants.
Exempted Governmental Activities
A claim will not be payable under the MCA if it
involves an exempted governmental activity. The most
frequent examples include the following:
Combat activities or enemy action
Certain postal activities
Property damage claims based on alleged
contract violations by the government
Claims Cognizable Under Other Claims
Statutes
Claims that are governed by one of the following
claims statutes are not payable under the MCA:
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Federal Tort Claims Act
Military Personnel and Civilian Employees’
Claims Act
Foreign Claims Act
Certain admiralty claims
Excluded Classes of Claimants
Military members and civilian employees of the
Department of the Navy may not recover under the
MCA for personal injury or death occurring incident to
service or employment.
Compensation may be
recovered for property damage under the MCA if it is
not covered by another claims statute. As a practical
matter, however, when a military member suffers
property damage incident to service, it will usually be
compensated under the Military Personnel and Civilian
Employees’ Claims Act.
Nationals of an ally of a country at war with the
United States, unless the individual claimant is
determined to be friendly to the United States, are
excluded from MCA coverage.
Generally, a claim will not be paid under the MCA
if the injury, death, or personal property damage was
caused in whole or in part by the claimant’s own
negligence or wrongful acts.
This contributory
negligence is a complete bar to tort recovery in many
states. However, if the law of the jurisdiction where the
claim arose would allow recovery in a lawsuit, even
though the claimant was negligent, the MCA claim can
be paid. Under such circumstances, the negligent
claimant will only recover that amount that local law
would permit a negligent claimant to recover in its
courts. This partial recovery concept is known as the
comparative negligence doctrine.
MEASURE OF DAMAGES
The rules for determining the amount of a claimant’s
recovery under the MCA arc similar to those governing
other claims.
The amount of compensation for property damaged
is based on the estimated cost of restoring the property
to its condition before the incident. If the property
cannot be repaired economically, the measure of
damage will be the replacement cost of the property
minus any salvage value. The claimant also may
recover compensation for loss of use of the property.
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