(3) Any claim arising in respect of the assessment or collection of any tax or customs duty, or the detention of any goods or merchandise by any officer of customs or excise or any other law enforcement officer;

(4) Any claim for which a remedy is provided by the act of March 9, 1920, as amended (46 U.S.C. 741-752), or the act of March 3, 1925 as amended (46 U.S.C. 781-790) relating to claims or suits in admiralty against the United States. Claims arising under the Death on the High Seas Act (46 U.S.C. 761) are not excepted from the provisions of 28 U.S.C. 1346(b). Because they may involve both admiralty and torts procedure, however, claims under this Act will be referred to the JAG for adjudication in all cases. By virtue of 28 U.S.C. 2680(d), admiralty claims arising from damage caused by a vessel in the naval service are processed in accordance with Part 752 of this chapter. Admiralty claims arising from other sources may be adjudicated under the Military Claims Act or the Foreign Claims Act, with the assistance of the Admiralty Division of the Office of the Judge Advocate General if appropriate.

(5) Any claim arising out of an act or omission of any employee of the Government in administering the provisions of the Trading with the Enemy Act, as amended (50 U.S.C. App. 1-44);

(6) Any claim for damages caused by the imposition or establishment of a quarantine by the United States;

(7) Any claim arising out of assault, battery, false imprisonment, false arrest, malicious prosecution, abuse of process, libel, slander, misrepresentation, deceit, or interference with contract rights: Provided, That with regard to acts or omissions of investigative or law enforcement officers of the United States Government, the provisions of Federal Tort Claims Act shall apply to any claim arising on or after March 16, 1974, out of assault, battery, false imprisonment, false arrest, abuse of process, or malicious prosecution. For the purpose of this provision, "investigative or law enforcement officer" means any officer of the United States who is empowered by law to execute searches, to

seize evidence, or to make arrests for violations of federal law.

(8) Any claim for damages caused by the fiscal operations of the Treasury or by the regulation of the monetary system;

(9) Any claim arising out of the combatant activities of the military or naval forces, or the Coast Guard, during time of war;

(10) Any claim arising in a foreign country; and

(11) Any claim arising from the activities of the Tennessee Valley Authority, the Panama Canal Company, a Federal land bank, a Federal intermediate credit bank, or a bank for cooperatives.

(d) Additional claims not payable. Although not expressly excepted from the application of the provisions governing administrative settlement of Federal tort claims, the following types of claims shall not be paid:

(1) Any claim for the personal injury or death of a member of the naval forces of the United States incurred incident to service or duty (Feres v. United States, 340 U.S. 135 (1950); compare Brooks v. United States, 337 U.S. 49 (1949));

(2) Any claim of military personnel or civilian employees of the Navy for damage to or loss, destruction, capture, or abandonment of personal property occurring incident to their service, which claim is cognizable under 31 U.S.C. 240-243 and the applicable Personnel Claims Regulations (see Part 751 of this chapter);

(3) Any claim for the personal injury or death of a Government employee to whom the Federal Employees' Compensation Act, as amended and reenacted (5 U.S.C. 7901-7903, 8101-8193), is applicable (see 5 U.S.C. 8116c, specifically);

(4) Any claim for personal injury or death of a civilian employee of a nonappropriated-fund activity covered by the Longshoremen's and Harbor Workers' Compensation Act (see 33 U.S.C. 905 and 5 U.S.C. 8171);

(5) That portion of any claim attributable to the fault or negligence of a contractor of the Government, to the extent to which such contractor may be liable under the provisions of his contract (see United States v. Seck

inger, 397 U.S. 203 (1969), and § 750.7(a)(15)), and

(6) Any claim against the Navy by another Federal agency. Tort or torttype claims for damage to the property of one Government department or agency normally are not asserted against another Government department or agency, regardless of whether a department or agency is fully supported from appropriated funds, is partly supported by revenue-producing activities, or is a Government corporation or a nonappropriated-fund activity (see 25 Comp. Gen. 49 (1945); 9 Comp. Gen. 263 (1930); 6 Comp. Gen. 171 (1926); 6 Comp. Dec. 74 (1899); but see 26 Comp. Gen. 235 (1946); 14 Comp. Gen. 256 (1934)). This interdepartmental waiver is predicated on the doctrine that property belonging to the Government is not owned by any department of the Government (see 22 Comp. Dec. 390 (1916)). The Government does not reimburse itself for the loss of its own property except where. specifically provided for by law. A department or agency of the District of Columbia is not considered to be a Government department or agency for the purpose of filing a claim (see 46 Comp. Gen. 586 (1966); 36 Comp. Gen. 457 (1956)).

(1 CFR 18.14, and Part 21 Subpart B)

[38 FR 6028, Mar. 6, 1973, as amended at 41 FR 26864, June 30, 1976; 45 FR 8600, Feb. 8, 1980]

§ 750.37 Measure of damages.

(a) In general. Subject to the exceptions set out in paragraphs (b) and (d) of this section for claims under the Federal Tort Claims Act, the measure of damages is determined by the law of the place where the act or omission occurred (28 U.S.C. 2674). When there is a conflict between local law and applicable Federal law, the latter gov

erns.

(b) Multistate torts. In situations involving more than one jurisdiction, the measure of damages of the United States under paragraph (a) of this section is determined by the law of the place where the act or omission occurred, including the choice of law rules of that place (Richards v. United States, 369 U.S. 1 (1962)).

(c) Limitations on liability. The United States is not liable for interest prior to judgment or for punitive damages. If, however, in any case wherein death was caused, the law of the place where the act or omission complained of occurred provides, or has been construed to provide, for damages only punitive in nature, the United States is liable for, in lieu thereof, actual or compensatory damages measured by the pecuniary injuries resulting from such death to the persons, respectively, for whose benefit the action was brought (28 U.S.C. 2674).

(d) Indemnity or contribution. Under circumstances where the Government is deemed to be entitled to contribution or indemnity, the third party will be notified of the claim in writing and will be requested to contribute his fair share of a proposed settlement or to properly indemnify the Government. Contribution or indemnity claims will be processed and negotiated by the persons and commands listed in § 750.80 when the recommended contribution of the Navy is within the settlement authority of such persons or commands. If the third party fails to make satisfactory arrangements, a valid claim may be denied in order to force the third party to be joined as a party defendant when the claimant brings suit. See § 750.35(c)(2)(iii) concerning settlement without indemnification or contribution.

(e) Setoff. In a case brought by a serviceman not barred by the Feres doctrine (Feres v. United States, 340 U.S. 135, (1950)), an award will be reduced by the value of benefits received, and to be received in the future, by the serviceman (Brooks v. United States, 337 U.S. 49, (1949)).

§ 750.38 Statute of limitations.

(a) Every claim against the United States submitted for consideration under the Federal Tort Claims Act must be presented in writing within two years after the claim accrued or be forever barred (28 U.S.C. 2401(b)). The filing of suit against the United States does not constitute the presentment of a claim under this subsection or under 28 U.S.C. 2401(b) (Gunstream

v. United States, 307 F. Supp. 366 (C.D. Cal. 1969)).

(b) A tort claim is forever barred unless an action is commenced against the United States within 6 months after the date of mailing of notice of final denial of the claim by the agency to which it was presented (28 U.S.C. 2401(b)). See § 750.34(i) regarding a request for reconsideration.

§ 750.39 Attorney fees.

(a) Attorney fees not in excess of 20 percent of any compromise or settlement made pursuant to §§ 750.34750.35 above may be allowed. Attorney fees so determined are to be paid out of the amount awarded and not in addition to the award. Where judgment is rendered in favor of the claimant by a court of competent jurisdiction or where settlement is made after suit is filed, attorney fees shall not exceed 25 percent (28 U.S.C. 2678).

(b) The fee limitations noted above are imposed by statute, and in order to ensure compliance they shall be incorporated in any settlement agreement secured from a claimant. See appendix page 20-b1 for a sample settlement agreement including a statement regarding attorney fees.

§ 750.40 Regulations of Attorney General governing administrative claims procedure.

The Regulations of the Attorney General for administrative claims under the Federal Tort Claims Act, appear in 28 CFR Part 14.

individual, partnership, association, corporation, or political entity, including countries, states, territories, and political subdivisions thereof, but excluding the Federal Government of the United States and its instrumentalities.

(b) The words "military personnel or civilian employees of the Navy" inIclude all military personnel of the Navy, prisoners of war and interned enemy aliens engaged by the Navy in labor for pay, volunteer workers and others serving as employees of the Navy with or without compensation, and members of the Environmental Science Services Administration or of the Public Health Service who are serving with the Navy or Marine Corps.

(c) Military includes "naval."

§ 750.52 Statutory authority.

(a) General authorization. Subject to the statutory exceptions set forth in § 750.55(d), the Secretary of the Navy-or the Judge Advocate General, subject to appeal to the Secretarymay settle and pay, in an amount not in excess of $25,000, a claim against the Navy for damage to or loss or destruction of real or personal property, or for personal injury or death, either caused by military personnel or civilian employees of the Navy while acting within the scope of their employment or otherwise incident to noncombat activities of the Navy, including claims for damage to or loss of destruction by criminal acts of registered or insured mail while in the possession of the military authorities, claims for damage to or loss or destruction of personal property bailed to the Government, and claims for damage to real property incident to the use and occupancy thereof, whether under a lease, express or implied, or otherwise (10 U.S.C. 2733(a)).

(b) Authorization for payment of claims in excess of $25,000. If the Secretary of the Navy considers that a claim in excess of $25,000 is meritorious and would otherwise be covered by 10 U.S.C. 2733 and paragraph (a) of this section, he may make a partial payment of $25,000 and refer the excess to the Office of Management

and Budget for submission to Congress for its consideration (10 U.S.C.

2733(d)).

(c) Delegable authorization to pay claims not in excess of $5,000. In any case where the amount to be paid is not more than $5,000, the Secretary of the Navy may delegate the authority of 10 U.S.C. 2733(a) and paragraph (a) of this section, subject to appeal to the Secretary or his designee for that purpose (10 U.S.C. 2733(g)). See § 750.80 for the Navy and Marine Corps officials with delegated authority to pay claims, and see § 750.53(h) for the appellate designees under this section.

(d) No right to sue. The Military Claims Act authorizes the settlement and payment of certain claims but does not authorize any right to sue the United States. The United States has consented to be sued in tort under 28 U.S.C. 1346(b) only, and, by virtue of 10 U.S.C. 2733(b)(2), Federal tort claims are not payable under the Military Claims Act.

(e) Territorial limitations. There is no geographical limitation on the application of the Military Claims Act, but if a claim arising in a foreign country is cognizable under the Foreign Claims Act (10 U.S.C. 2734), the claim shall be processed under Chapter XXII of the Manual of the Judge Advocate General.

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

[38 FR 6028, Mar. 6, 1973, as amended at 41 FR 26864, June 30, 1976; 45 FR 8600, Feb. 8, 1980]

§ 750.53 The administrative claim.

(a) Proper claimant. In determining if a claimant is the proper party to pursue the claim, the provisions of §§ 750.11 and 750.34(a) apply. Where the claim is for wrongful death, however, only one claim shall be allowed and any payment shall be apportioned according to § 750.56(b).

(b) Proper claim and presentation. A claim is proper in form and presentation if it constitutes written notification of an incident, signed by the claimant or a duly authorized agent or legal representative, together with a claim for money damages in a sum certain.

(c) Evidence and information in support of the claim. See section 2013

for the evidence and information required to substantiate a claim. 10 U.S.C. 2733(b)(5) requires that a claim be substantiated in accordance with these regulations in order to be paid.

(d) Amendment of the claim. A proper claim may be amended by the claimant at any time prior to a final disposition of the claim. An amendment of a claim shall be submitted in writing and shall be signed by the claimant or a duly authorized agent or legal representative.

(e) Payment of the claim. Payment of a claim shall be accomplished in accordance with § 750.17.

See

(f) Settlement agreement. § 750.18 and appendix page 20b. (g) Denial of the claim. See § 750.19. (h) Appeal of the claim. (1) A claim which is disapproved in whole or in part may be appealed by the claimant at any time within 30 days after receipt of notification of disapproval. Such appeal shall be in writing and shall state the grounds relied upon.

(2) An appeal in any case where the amount in contention exceeds $5,000 may be decided either by the Secretary of the Navy or the Judge Advocate General, except that, where the claim is disapproved originally by the Judge Advocate General, an appeal thereof shall be decided by the Secretary.

(3) An appeal in any case where the amount in contention is $5,000 or less may be decided either by the Secretary of the Navy, the Judge Advocate General, the Deputy Judge Advocate General, the Assistant Judge Advocate General (Civil Law), or the Deputy Assistant Judge Advocate General (Claims); provided, any such appeal must be decided by an official senior to the official who originally disapproved the claim.

(4) See 750.20(c) for procedure for disposing of an appeal.

[38 FR 6028, Mar. 6, 1973, as amended at 39 FR 20681, July 13, 1974; 41 FR 26864, June 30, 1976]

§ 750.54 Authority to settle. See 750.80.

§ 750.55 Scope of liability.

(a) Caused by a member or employee. Subject to the exceptions of paragraph (d) of this section, the Navy shall be responsible under 10 U.S.C. 2733 in money damages for damage to or loss or destruction of property, real or personal, or for personal injury or death, which is caused by military personnel or civilian employees of the Navy while acting within the scope of their employment.

(b) Otherwise incident to noncombat activities. Subject to the exceptions of paragraph (d) of this section a claim for damage to or loss or destruction of property, real or personal, or for personal injury or death, although not shown to have been caused by any particular act or omission of military personnel or civilian employees of the Navy while acting within the scope of their employment, is payable under the Military Claims Act if otherwise incident to noncombat activities of the Navy. Claims within this category are those arising out of authorized activities which are peculiarly military activities having little parallel in civilian pursuits, and out of situations in which the Government has historically assumed a broad liability, such as claims for damage or injury arising from, and which are the natural or probable results or incidents of: Maneuvers and special exercises; practice firing of heavy guns; practice bombing; naval exhibitions; operations of missiles, aircraft, and antiaircraft equipment; sonic booms; use of barriage balloons; use of instrumentalities having latent mechanical defects not traceable to negligent acts or omissions; explosions of of ammunition; movement of combat vehicles or other vehicles designed especially for military use; and the use and occupancy of real estate.

(c) Specific claims payable. Claims payable by the Navy under paragraphs (a) and (b) of this section shall include, but shall not be limited to:

(1) Registered or insured mail. Claims for damage to or loss or destruction, by criminal acts, of registered or insured mail while in the possession of the military authorities are payable under the Military Claims Act. This provision of the Act is in the

nature of an exception to the general requirement that the damage, loss, or destruction of personal property, in order to be compensable thereunder, be caused by military personnel or civilian employees of the Navy while acting within the scope of their employment or be otherwise incident to noncombat activities of the Navy. In effect, this provision makes it possible for the Navy to relieve the Postal Service of its obligation as an insurer with respect to registered and insured mail relinquished into the possession of the Navy for transportation or for delivery to the addressee. For this reason, the maximum award to a claimant under the provisions of this section shall be limited in amount to that to which the claimant would be entitled from the Postal Service in accordance with the registry or insurance fee paid. The amount of the award shall not exceed the cost of the item to the claimant, however, regardless of the fees paid. The claimant may be reimbursed for the postage and registry or insurance fees as elements of the cost.

(2) Loaned or rented to the Government. Claims for damage to or loss or destruction of personal property loaned, rented, or otherwise bailed to the Government, under an agreement expressed or implied, are payable under the Military Claims Act, even though legally enforceable against the Government as contract claims, unless by express agreement the bailor has assumed the risk of damage, loss, or destruction. 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 a contract claims.

(3) Personal property of prisoners of war. Claims of prisoners of war or interned enemy aliens for damage to or destruction of personal property in the custody of the Government are payable only when the proximate cause of the damage, loss, or destruction is shown to be the tortious act or omission of military personnel or civilian employees of the Navy.

(4) Real property under lease or otherwise. Claims for damage to real property incident to the use and occu