pancy thereof by the Government, whether under an express or implied lease or otherwise, are payable under the provisions of the Military Claims Act even though legally enforceable against the Government as contract claims. Claims filed under this paragraph may, if deemed in the best interest of the Government, be referred to and processed by the Office of the General Counsel, Department of the Navy, as contract claims.

(d) Claims not payable. Notwithstanding paragraphs (a), (b), and (c) of this section, the following claims shall not be paid under 10 U.S.C. 2733:

(1) Any claim for damage, loss, destruction, injury, or death which was proximately caused, in whole or in part, by any negligence or wrongful act on the part of the claimant, his agent, or his employee, unless the law of the place where the act or omission complained of occurred would permit recovery from a private individual under like circumstances, and then only to the extent permitted by that law;

(2) Any claim for damage, loss, destruction, injury, or death resulting from action by the enemy, or resulting directly or indirectly from any act by armed forces engaged in combat;

(3) Any claim for reimbursement for medical or hospital services furnished at the expense of the United States or, in the case of burial, for such portion of the expense thereof as may be otherwise paid by the United States;

(4) Any claim of military personnel or civilian employees of the United States for damage to or loss, destruction, capture, or abandonment of personal property occurring incident to their service which claim is cognizable under the Military Personnel and Civilian Employees' Claims Act as amended (31 U.S.C. 240-243) and applicable regulations (Part 751 of this chapter).

(5) Any claim arising in a foreign country or possession thereof which is cognizable under the Foreign Claims Act (10 U.S.C. 2734) and applicable regulations thereto (Chapter XXII of the Manual of the Judge Advocate General);

(6) Any claim cognizable under 10 U.S.C. 7622 relating to admiralty

claims and to claims for damages caused by naval vessels (Part 752 of this chapter);

(7) Any claim for damage to or loss or destruction of real or personal property founded in written contract, except as provided in paragraphs (c) (2) and (4) of this section;

(8) Any claim for rent of real or personal property, except as provided in paragraphs (c)(2) and (4) of this section;

(9) Any claim involving the infringement of patents;

(10) Any claim for damage, loss, or destruction of mail matter occurring prior to delivery by the Postal Service to authorized military personnel or civilian employees of the Navy (e.g., designated Navy mail clerks and assistant Navy mail clerks, mail orderlies, or postal officers);

(11) Any claim for damage, loss, or destruction of mail matter occurring due to the fault of, or while in the hands of, bonded personnel;

(12) Any claim for damage, loss, or destruction of mail matter arising after resumption of possession by the Postal Service (e.g., for the purpose of forwarding to the addressee at a different address) and prior to redelivery to authorized military personnel or civilian employees of the Navy charged with transportation or distribution to the addressee;

(13) Any claim by an inhabitant of a foreign country who is a national of a country at war with the United States or of any ally of such an enemy country, unless it be determined that the claimant is friendly to the United States;

(14) Any claim for personal injury or death of military personnel or civilian employees of the Government if such injury or death occurs incident to their service; and

(15) Any claim for damage, injury, or death caused by a member or employee of the Department of the Navy while acting within the scope of his employment, and which is in all other respects within the cognizance of the Federal Tort Claims Act and Subpart B of this part.

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

[38 FR 6028, Mar. 6, 1973, as amended at 39 FR 20681, June 13, 1974; 45 FR 8600, Feb. 8, 1980]

§ 750.56 Measure of damages.

In cases cognizable under the Military Claims Act (10 U.S.C. 2733), the measure of damages shall be as follows:

(a) Damage to property. (1) If the property has been or can be economically repaired, the measure of damages shall be the actual or estimated net cost of the repairs necessary to restore the property to substantially the condition which existed immediately prior to the incident. Damages so determined shall not, however, exceed the value of the property immediately prior to the incident less the value thereof immediately after the incident. To determine the actual or estimated net cost of repairs, the value of any salvaged parts or materials and the amount of any net appreciation in value effected through the repair shall be deducted from the actual or estimated gross cost of repairs, and the amount of any net depreciation in the value of the property shall be added to such gross cost of repairs, provided such adjustments are sufficiently substantial in amount to warrant consideration. All estimates of the cost of repairs shall be based upon the lower or lowest of two or more competitive bids, or upon statements or estimates by one or more competent and disinterested persons, preferably reputable dealers or officials familiar with the type of property damaged, lost, or destroyed.

(2) If the property cannot be economically repaired, the measure of damages shall be the value of the property immediately prior to the incident less the value thereof immediately after the incident. All estimates of value shall be made, if possible, by one or more competent and disinterested persons, preferably reputable dealers or officials familiar with the type of property damaged, lost, or destroyed.

(3) Loss of use of damaged property which is economically repairable may, if claimed, be included as an additional element of damage to the extent of the reasonable expense actually incurred for appropriate substitute prop

erty, but only for such period as is reasonably necessary for repairs: And provided, That idle substitute property of the claimant was not employed. When substitute property is not obtainable, other competent evidence such as rental value, if not speculative or remote, may be considered. When substitute property is reasonably available but is not obtained and used by the claimant, loss of use is normally not payable.

(b) Personal injury or death. In claims for personal injury or death, the measure of damages may include reasonable medical, hospital, and burial expenses, loss of earnings and services, diminution of earning capacity, pain and suffering, permanent injury, and death. In computing damages in cases of personal injury or death, local standards will be taken into consideration as a guide. In case of death, only one claim will be allowed. The amount approved therefor shall, to the extent found practicable or feasible, be apportioned among the beneficiaries, and in the proportions prescribed by law or custom of the place in which the accident or incident resulting in death occurs.

(c) Limitations. Payment shall not be made for the following elements of damage: Interest, cost of preparation of claims, attorneys' fees, inconvenience, and other similar items. The cost of repair estimates reasonably required to process the claim, however, may be paid.

(d) Setoff of a recovery from a joint tort-feasor. If a claimant has elected to proceed against a third party as a joint tort-feasor, any amount paid by such third party for damage which might otherwise be properly included in the claim against the Government shall be deducted from any award by the Government to the claimant.

8 750.57 Statute of limitations.

No claim may be settled under the Military Claims Act unless it is presented in writing within 2 years after it accrues. If such accident or incident occurs in time of war of armed conflict, however, or if war or armed conflict intervenes within 2 years after its occurrence, any claim may, on good

cause shown, be presented within 2 years after the war or armed conflict is terminated. For the purposes of the Military Claims Act, the dates of the beginning and ending of an armed conflict are the dates established by concurrent resolution of Congress or by determination of the President (10 U.S.C. 2733(b)(1)).

88 750.58-750.59 [Reserved]

Subpart D-Claims Not Cognizable Under Any Other Provision of Law

§ 750.60 Scope of Subpart D.

The regulations of this Subpart D apply exclusively to the administrative processing and consideration of claims against the Navy arising under 10 U.S.C. 2737. These claims are sometimes referred to as “nonscope” claims and are claims that are not cognizable under any other provision of law.

§ 750.61 Definitions.

(a) Civilian official or employee. Any civilian official or employee of the Department of the Navy paid from appropriated funds at the time of the incident which resulted in the damage or loss.

(b) Vehicle. Includes every description of carriage or other artificial contrivance used, or capable of being used, as a means of transportation on land (1 U.S.C. 4).

(c) Government installation. A United States Government facility having fixed boundaries and owned or controlled by the Government.

§ 750.62 Statutory authority.

(a) General authorization. 10 U.S.C. 2737 provides authority for the administrative settlement in an amount not to exceed $1,000 of any claim against the United States not cognizable under any other provision of law for damage to or loss of property, or for personal injury or death, caused by military personnel or a civilian official or employee incident to the use of a vehicle of the United States at any place, or incident to the use of any other property of the United States on a Government installation.

(b) No right to sue. There is no right to sue the United States on a claim arising under 10 U.S.C. 2737.

(c) Territorial application. There is no geographical limitation on the application of 10 U.S.C. 2737.

§ 750.63 Proper claim and claimant/processing of the claim.

(a) General. The general claims provisions of Subpart A of this part apply in determining what is a proper claim, who is a proper claimant, and how a claim is to be processed under 10 U.S.C. 2737 and this Part 750.

(b) Claims submitted pursuant to another statute. Claims submitted under the provisions of the Federal Tort Claims Act or Military Claims Act shall, in appropriate cases, be considered automatically for an award under this part when payment would otherwise be barred because the employee or serviceman was not in the scope of his employment. If a tender of payment under this part is not accepted by the claimant in full satisfaction of his claim, no award will be made, and the claim will be denied pursuant to the rules applicable to the statute pursuant to which it was submitted.

(c) Claims submitted pursuant to this statute. Claims submitted solely pursuant to 10 U.S.C. 2737 shall be promptly considered. If a claim is denied for any reason, the claimant shall be informed in writing of this fact and that he may appeal such decision (see § 750.19(b)) within 30 days of the notice of denial by writing to the Secretary of the Navy (Judge Advocate General). See § 750.20(b)(2).

§ 750.64 Officials with authority to settle. See § 750.80.

[38 FR 6028, Mar. 6, 1973, as amended at 41 FR 26865, June 30, 1976]

§ 750.65 Scope of liability and measure of damages.

(a) Scope of liability. Subject to the exceptions of paragraph (b) of this section, the responsibility of the United States shall be in money damages, not to exceed $1,000, for damage to or loss or destruction of property or for personal injury or death caused by