B-156511, JUN 1, 1972

B-156511: Jun 1, 1972

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THAT PORTION OF THE CLAIM WHICH RELATES TO THE LAND ACTUALLY OCCUPIED BY THE ARMY MAY BE ALLOWED UNDER 31 U.S.C. 71 IF AMENDMENT NO. 1 IS TREATED AS A REFORMATION OF THE AGREEMENT. TO DEFENSE COST OFFICE: REFERENCE IS MADE TO REQUEST FOR RECONSIDERATION OF OUR CLAIMS DIVISION SETTLEMENT DATED MAY 12. THE REQUEST FOR RECONSIDERATION WAS TRANSMITTED BY LETTER OF FEBRUARY 7. THE INSTANT CLAIM IS FOR LOSSES IN HUNTING REVENUES ALLEGEDLY INCURRED BY THE COMMUNITY OF LINGENFELD AS A RESULT OF THE PRESENCE OF A UNITED STATES ARMY AMMUNITION STORAGE FACILITY ON LAND OWNED BY LINGENFELD. THE TOTAL AMOUNT OF THE CLAIM IS DM (DEUTSCHEMARKS) 3. OF THIS AMOUNT DM 480.00 IS ATTRIBUTABLE TO LOSSES WITH RESPECT TO THE 65 HECTARE (160.6 ACRE) TRACT ACTUALLY OCCUPIED AND CONTROLLED BY THE UNITED STATES ARMY FOR PURPOSES OF THE AMMUNITION STORAGE FACILITY (HEREAFTER REFERRED TO AS "THE OCCUPIED TRACT").

B-156511, JUN 1, 1972

FOREIGN CLAIMS - JURISDICTION OF GAO TO SETTLE DECISION REGARDING A CLAIM PRESENTED BY THE GERMAN FEDERAL ASSETS OFFICE, LANDAU, ON BEHALF OF THE COMMUNITY OF LINGENFELD, GERMANY, FOR LOSSES IN HUNTING REVENUES ALLEGEDLY INCURRED AS A RESULT OF THE PRESENCE OF A U.S. ARMY AMMUNITION STORAGE FACILITY ON LAND OWNED BY LINGENFELD. THAT PORTION OF THE CLAIM WHICH RELATES TO THE LAND ACTUALLY OCCUPIED BY THE ARMY MAY BE ALLOWED UNDER 31 U.S.C. 71 IF AMENDMENT NO. 1 IS TREATED AS A REFORMATION OF THE AGREEMENT. THE AMENDMENT RELATES BACK TO THE EFFECTIVE DATE OF THE ORIGINAL INSTRUMENT AND MAY THUS SERVE AS THE BASIS FOR A CLAIM RETROACTIVE TO THE INCEPTION OF THE OBLIGATION DOCUMENTS. THE CLAIM RELATING TO THE ADJACENT HUNTING AREA MAY NOT BE ALLOWED BY GAO BECAUSE THE PARTIES APPARENTLY DID NOT INTEND THESE LOSSES TO BE COVERED BY THE AGREEMENT AND, THEREFORE, JURISDICTION DOES NOT EXIST UNDER 31 U.S.C. 71. HOWEVER, THE ARMY MAY STILL CONSIDER THIS CLAIM UNDER 10 U.S.C. 2734 AS A NONCONTRACTUAL FOREIGN CLAIM.

TO DEFENSE COST OFFICE:

REFERENCE IS MADE TO REQUEST FOR RECONSIDERATION OF OUR CLAIMS DIVISION SETTLEMENT DATED MAY 12, 1965, DISALLOWING A CLAIM (CLAIM NO. Z- 2267542(5)) PRESENTED BY THE GERMAN FEDERAL ASSETS OFFICE, LANDAU, ON BEHALF OF THE COMMUNITY OF LINGENFELD, GERMANY. THE REQUEST FOR RECONSIDERATION WAS TRANSMITTED BY LETTER OF FEBRUARY 7, 1972, FROM MR. J. E. JASKIEWICZ, CHIEF, MANAGEMENT AND DISPOSAL DIVISION, DIRECTOR OF REAL ESTATE, OFFICE OF THE CHIEF OF ENGINEERS, DEPARTMENT OF THE ARMY.

THE INSTANT CLAIM IS FOR LOSSES IN HUNTING REVENUES ALLEGEDLY INCURRED BY THE COMMUNITY OF LINGENFELD AS A RESULT OF THE PRESENCE OF A UNITED STATES ARMY AMMUNITION STORAGE FACILITY ON LAND OWNED BY LINGENFELD. THE TOTAL AMOUNT OF THE CLAIM IS DM (DEUTSCHEMARKS) 3,142.50 COVERING A PERIOD FROM APRIL 1, 1961, TO DECEMBER 31, 1964. OF THIS AMOUNT DM 480.00 IS ATTRIBUTABLE TO LOSSES WITH RESPECT TO THE 65 HECTARE (160.6 ACRE) TRACT ACTUALLY OCCUPIED AND CONTROLLED BY THE UNITED STATES ARMY FOR PURPOSES OF THE AMMUNITION STORAGE FACILITY (HEREAFTER REFERRED TO AS "THE OCCUPIED TRACT"). THE BALANCE OF DM 2,662.50 IS ATTRIBUTABLE TO LOSSES WITH RESPECT TO AN AREA OF LAND ADJACENT TO THE OCCUPIED TRACT WHICH IS ALSO OWNED BY LINGENFELD (HEREAFTER REFERRED TO AS "THE ADJACENT TRACT").

THE RECORD DISCLOSES THAT IN MARCH OF 1952, THE UNITED STATES FORCES, EUROPE, REQUISITIONED AND ASSUMED CONTROL OF THE OCCUPIED TRACT FOR USE OF AN AMMUNITION STORAGE FACILITY. IN MARCH OF 1961, THE REQUISITION STATUS OF THIS TRACT WAS CONVERTED TO A LEASE PURSUANT TO THE UNITED STATES- GERMAN TECHNICAL ARRANGEMENTS, SIGNED AT BONN ON MARCH 11, 1957. THE CONVERSION PROCESS CONSISTED OF TWO TRANSACTIONS. BY LEASE DATED MARCH 13, 1961, THE FEDERAL REPUBLIC OF GERMANY RENTED THE OCCUPIED TRACT FROM THE COMMUNITY OF LINGENFELD. BY REAL PROPERTY OBLIGATION DOCUMENT DATED MARCH 27, 1961, THE LEASEHOLD INTEREST THUS ACQUIRED BY THE FEDERAL REPUBLIC WAS TRANSFERRED TO THE UNITED STATES FORCES.

BOTH THE LEASE AND THE ORIGINAL OBLIGATION DOCUMENT PROVIDED FOR A TOTAL ANNUAL RENTAL OF DM 2,257.04. UNDER SECTION 4, PARAGRAPH 1 OF THE LEASE, THE TOTAL ANNUAL RENTAL WAS EXPRESSED AS THE SUM OF CERTAIN COMPONENTS, INCLUDING DM 262.00 AS "COMPENSATION FOR THE IMPAIRMENT OF HUNTING RIGHTS PER YEAR." SECTION 4, PARAGRAPH 5 OF THE LEASE CONTAINED THE FOLLOWING PROVISION, QUOTING FROM WHAT APPEARS TO BE THE OFFICIAL TRANSLATION:

"SHOULD THE HUNTING RENTAL OF THE FOREST TERRAIN ALTER CONSIDERABLY, THE LESSOR CAN REQUEST A RESPECTIVE ADJUSTMENT FOR THE IMPEDED USE OF THE HUNTING AREAS."

THE OBLIGATION DOCUMENT IN ITS ORIGINAL FORM DID NOT SPECIFY THE ELEMENTS OF THE TOTAL RENTAL, AND CONTAINED NO PROVISION RELATIVE TO ADJUSTMENT OF THE RENTAL. AMENDMENT NO. 1 TO THE OBLIGATION DOCUMENT, DATED APRIL 12, 1962, PROVIDES IN PART AS FOLLOWS:

"THE UNDERSIGNED PARTIES AGREE THAT THE FOLLOWING STIPULATIONS BE ADDED TO PARAGRAPH 6 - SPECIAL ARRANGEMENTS:

"SHOULD THE HUNTING RENTAL FOR THE FOREST AREA WHICH REMAINS WITH THE COMMUNITY CHANGE SUBSTANTIALLY, EITHER PARTY CAN REQUEST AN ADJUSTMENT OF THE COMPENSATION FOR LOSS OF HUNTING RIGHTS WHICH IS A COMPONENT PART OF THE RENTAL. *** "

AMENDMENT NO. 2 TO THE OBLIGATION DOCUMENT, DATED DECEMBER 15, 1964, PROVIDES AS FOLLOWS (GERMAN TRANSLATION OMITTED):

"THE UNDERSIGNED PARTIES AGREE THAT PARAGRAPH 5 OF THE AFOREMENTIONED OBLIGATION DOCUMENT BE CHANGED AS FOLLOWS:

"ANNUAL RENT: DM 3,095.04

"QUARTERLY RENT: DM 773.76

"THE FOREGOING AMOUNTS CONSIST OF

"A. DM 1,995.04 (498.76) FOR REAL PROPERTY

"B. DM 1,100.00 (275.00) COMPENSATION FOR THE LOSS OF HUNTING REVENUE

"THIS AMENDMENT IS MADE TO COVER COSTS TO THE COMMUNITY WHICH ARE DIRECTLY ASSOCIATED WITH THE GRANTING OF THE LEASE HELD BY THE US FORCES UNDER SUBJECT OBLIGATION DOCUMENT. IT IS UNDERSTOOD THAT THE AMOUNTS SHOWN UNDER B) ABOVE ARE A FAIR INDEMNIFICATION FOR THE LOSS OF HUNTING REVENUE WHICH THE COMMUNITY MAY SUFFER FROM THE EXISTENCE OF THE CLASS V STOCK POINT GERMERSHEIM, NOW OR IN THE FUTURE. A CHANGE IN THE AMOUNT OF THIS INDEMNIFICATION CAN BE REQUESTED BY THE PARTIES INVOLVED ONLY AFTER EXPIRATION OF THE EXISTING HUNTING LEASE CONTRACT.

"THIS AMENDMENT TO BE EFFECTIVE

"1 JANUARY 1965 *** ."

INITIALLY, A QUESTION OF THE JURISDICTION OF THIS OFFICE TO SETTLE THE INSTANT CLAIM UNDER 31 U.S.C. 71 ARISES UPON CONSIDERATION OF THE SO- CALLED "FOREIGN CLAIMS ACT," REENACTED AND CODIFIED AT 10 U.S.C. 2734, WHICH PROVIDES IN PART:

"SEC 2734. PROPERTY LOSS; PERSONAL INJURY OR DEATH; INCIDENT TO NONCOMBAT ACTIVITIES OF THE ARMED FORCES; FOREIGN COUNTRIES.

"(A) TO PROMOTE AND MAINTAIN FRIENDLY RELATIONS THROUGH THE PROMPT SETTLEMENT OF MERITORIOUS CLAIMS THE SECRETARY CONCERNED OR ANY OFFICER DESIGNATED BY HIM MAY, UNDER SUCH REGULATIONS AS THE SECRETARY MAY PRESCRIBE, APPOINT ONE OR MORE CLAIMS COMMISSIONS, EACH COMPOSED OF ONE OR MORE COMMISSIONED OFFICERS OF THE ARMED FORCES, TO SETTLE AND PAY ANY CLAIM FOR NOT MORE THAN $15,000, FOR -

"(1) DAMAGE TO, OR LOSS OF, REAL PROPERTY OF ANY FOREIGN COUNTRY OR OF ANY POLITICAL SUBDIVISION OR INHABITANT OF A FOREIGN COUNTRY, INCLUDING DAMAGE OR LOSS INCIDENT TO USE AND OCCUPANCY;

"IF THE DAMAGE, LOSS, PERSONAL INJURY, OR DEATH OCCURS OUTSIDE THE UNITED STATES, OR THE TERRITORIES, COMMONWEALTHS, OR POSSESSIONS, AND IS CAUSED BY, OR IS OTHERWISE INCIDENT TO NONCOMBAT ACTIVITIES OF, THE ARMED FORCES UNDER HIS JURISDICTION *** ."

THE DEPARTMENT OF THE ARMY APPARENTLY FOLLOWS A GENERAL PRACTICE OF ASSIGNING DOMESTIC AND FOREIGN CONTRACT CLAIMS FOR SETTLEMENT BY THIS OFFICE IN ACCORDANCE WITH 31 U.S.C. 71, WHILE TREATING NONCONTRACTUAL FOREIGN CLAIMS UNDER 10 U.S.C. 2734. THUS AR 405.15, ENTITLED "REAL ESTATE CLAIMS FOUNDED UPON CONTRACT" AND DEALING WITH CLAIMS TO BE PROCESSED UNDER 31 U.S.C. 71, PROVIDES IN PART AS FOLLOWS:

"2. PURPOSE AND SCOPE. THIS REGULATION PROVIDES GUIDANCE IN THE INVESTIGATION AND PROCESSING OF CLAIMS OF A CONTRACTUAL NATURE INVOLVING REAL ESTATE WHICH ARE TO BE SETTLED AND ADJUSTED BY THE GENERAL ACCOUNTING OFFICE PURSUANT TO THE ABOVE AUTHORITY. THIS REGULATION APPLIES TO THE FOLLOWING CLASSES OF CONTRACTUAL CLAIMS -

"B. CLAIMS FOR DAMAGES TO REAL PROPERTY FOUNDED UPON EXPRESS OR IMPLIED CONTRACT.

"3. CLAIMS NOT PAYABLE. THE FOLLOWING CLASSES OF CLAIMS ARE NOT PAYABLE UNDER THE ABOVE AUTHORITY:

"A.CLAIMS FOR DAMAGES TO REAL PROPERTY SOUNDING IN TORT AND NOT CONSTITUTING A TAKING.

"5. CLAIMS COGNIZABLE UNDER OTHER REGULATIONS.

A. IF A CLAIM UNDER THIS REGULATION IS ALSO COGNIZABLE UNDER *** AR 27-28 (NOW CHAPTER 10 OF AR 27-20) AS A FOREIGN CLAIM, THE PROCEDURE DEEMED TO BE IN THE BEST INTEREST OF THE GOVERNMENT SHOULD BE FOLLOWED."

CHAPTER 10 OF AR 27-20, ENTITLED "CLAIMS ARISING IN FOREIGN COUNTRIES," PROVIDES IN PART:

"10-9. CAUSATION. ***

"B. A CLAIM MAY BE SETTLED UNDER THIS CHAPTER IF IT ARISES FROM AUTHORIZED ACTIVITIES ESSENTIALLY MILITARY IN NATURE, HAVING LITTLE PARALLEL IN CIVILIAN PURSUITS AND WHICH HISTORICALLY HAVE BEEN CONSIDERED AS FURNISHING A PROPER BASIS FOR PAYMENT OF CLAIMS, SUCH AS PRACTICE FIRING OF MISSILES AND WEAPONS, TRAINING AND FIELD EXERCISES, AND MANEUVERS, INCLUDING, IN CONNECTION THEREWITH, THE OPERATION OF AIRCRAFT, AND VEHICLES, AND USE AND OCCUPANCY OF REAL ESTATE *** .

"10-10. CLAIMS PAYABLE. A. GENERAL. UNLESS OTHERWISE PRESCRIBED, A CLAIM FOR PERSONAL INJURY, DEATH, OR DAMAGE TO OR LOSS OF REAL OR PERSONAL PROPERTY MAY BE SETTLED UNDER THIS CHAPTER.

"C. PROPERTY. PROPERTY FOR THE LOSS OR DAMAGE OF WHICH CLAIMS MAY BE SETTLED UNDER THIS REGULATION INCLUDES -

"(1) REAL PROPERTY USED AND OCCUPIED IN CONNECTION WITH TRAINING, FIELD EXERCISES OR MANEUVERS. AN ALLOWANCE MAY BE MADE FOR THE USE AND OCCUPANCY OF REAL PROPERTY ARISING OUT OF TRESPASS OR OTHER TORT, EVEN THOUGH CLAIMED AS RENT. REAL ESTATE CLAIMS FOUNDED UPON CONTRACT ARE PROCESSED UNDER THE PROVISIONS OF AR 405-15.

"10-11. CLAIMS NOT PAYABLE. A CLAIM MAY NOT BE ALLOWED UNDER THIS CHAPTER WHICH -

"B. IS PURELY CONTRACTUAL IN NATURE."

FOR PURPOSES OF THE QUESTION OF JURISDICTION IT IS NECESSARY TO TREAT SEPARATELY THAT PORTION OF THE CLAIM ATTRIBUTABLE TO LOSSES IN THE OCCUPIED TRACT, AND THAT PORTION RELATING TO THE ADJACENT TRACT. WITH RESPECT TO THE OCCUPIED TRACT, IT WAS NOTED ABOVE THAT THE LEASE BY ITS TERMS SPECIFIED LOSS OF HUNTING REVENUES AS AN ELEMENT OF THE RENT, AND PROVIDED THAT THE LESSOR COULD REQUEST AN ADJUSTMENT OF THE RENT ON THE BASIS OF FLUCTUATION IN OBTAINABLE HUNTING REVENUES. WHILE THE OBLIGATION DOCUMENT IN ITS ORIGINAL FORM DID NOT CONTAIN COMPARABLE PROVISIONS, IT APPEARS THAT THE PARTIES THERETO INTENDED TO FOLLOW THE APPROACH SET FORTH IN EXPRESS TERMS IN THE LEASE. THUS 2ND INDORSEMENT DATED MARCH 12, 1971, FROM HEADQUARTERS, UNITED STATES ARMY, EUROPE AND SEVENTH ARMY, TO THE COMMANDING GENERAL, UNITED STATES ARMY ENGINEER COMMAND, EUROPE (AEAEN-RE, 28 DEC 70), STATES IN PART:

" *** THE FRG (FEDERAL REPUBLIC OF GERMANY) LEASED THE PROPERTY AND CONSIGNED IT TO US USE UNDER AN OBLIGATION DOCUMENT. IN SUCH SITUATIONS, IT IS CUSTOMARY FOR THE TERMS OF THE OBLIGATION DOCUMENT TO CONFORM TO THOSE OF THE LEASE SIGNED BY THE FRG. THIS PRACTICE WAS NOT FOLLOWED HERE. THE ESCALATION CLAUSE WAS OMITTED, APPARENTLY DUE TO AN ADMINISTRATIVE OVERSIGHT. TO CORRECT THE MISTAKE, THE CLAUSE WAS ADDED BY THE AMENDMENT TO THE OBLIGATION DOCUMENT DATED 12 APRIL 1962."

UNDER THESE CIRCUMSTANCES AMENDMENT NO. 1 TO THE OBLIGATION DOCUMENT MAY BE CONSIDERED AS CONSTITUTING IN EFFECT, A REFORMATION OF THE ORIGINAL INSTRUMENT BY THE PARTIES, AND MAY BE ENFORCED TO THE EXTENT THAT IT REFLECTS THE ORIGINAL INTENT OF THE PARTIES. CF. 3 CORBIN ON CONTRACTS, SEC 540, 614; 13 WILLISTON ON CONTRACTS, THIRD EDITION, SEC 1549, 1549A. TREATING AMENDMENT NO. 1 AS A REFORMATION, IT RELATES BACK TO THE EFFECTIVE DATE OF THE ORIGINAL INSTRUMENT AND MAY THUS SERVE AS THE BASIS FOR A CLAIM RETROACTIVE TO THE INCEPTION OF THE OBLIGATION DOCUMENT. CLAIM FOR ADJUSTMENT WAS ORIGINALLY ASSERTED BY THE COMMUNITY OF LINGENFELD ON MARCH 24, 1961. THE ADJUSTMENT AMOUNT WAS BASED UPON AN APPRAISAL REPORTED ON JANUARY 18, 1962, WHICH APPARENTLY APPLIED TO HUNTING CONDITIONS AS OF APRIL 1961. THERE IS NO INDICATION THAT THE UNITED STATES FORCES EVER QUESTIONED THE ACCURACY OF THIS APPRAISAL. THE ADJUSTMENT WAS FINALLY ACCEPTED BY THE UNITED STATES FORCES WITH THE TRANSMITTAL OF AMENDMENT NO. 2 TO THE OBLIGATION DOCUMENT BY LETTER DATED JANUARY 12, 1965. IT IS EXPLAINED THAT THE DELAY IN FINAL ACCEPTANCE OF THE ADJUSTMENT WAS OCCASIONED BY THE FACT OF PROCESSING THROUGH MANY CHANNELS; AND THAT SUCH FINAL ACCEPTANCE CONTEMPLATED A RETROACTIVE ADJUSTMENT FOR PAST HUNTING LOSSES. FOR THE REASONS STATED ABOVE, THERE IS A CONTRACTUAL BASIS FOR ALLOWANCE OF DM 480 WITH RESPECT TO THIS ASPECT OF THE CLAIM.

THE FOREGOING CONSIDERATIONS, HOWEVER, DO NOT APPLY TO THAT PORTION OF THE CLAIM BASED UPON THE LOSS OF HUNTING REVENUES IN THE ADJACENT TRACT. WHILE THE MATTER IS DISPUTED BY THE GERMAN AUTHORITIES, THE UNITED STATES FORCES HAVE CONSISTENTLY MAINTAINED THAT AT THE TIME THE ORIGINAL OBLIGATION DOCUMENT WAS EXECUTED (AND, IN FACT, AT THE TIME AMENDMENT NO. 1 WAS EFFECTED) THE PARTIES INTENDED THAT ONLY THOSE LOSSES IN HUNTING REVENUES ATTRIBUTABLE TO THE OCCUPIED TRACT WOULD CONSTITUTE AN ELEMENT OF THE RENTAL. THUS IT IS STATED IN 1ST INDORSEMENT DATED JANUARY 19, 1971, FROM HEADQUARTERS, UNITED STATES ARMY ENGINEER COMMAND, EUROPE, TO THE COMMANDER IN CHIEF, UNITED STATES ARMY, EUROPE AND SEVENTH ARMY (AEUEC- LRF, 28 DEC 70):

" *** IT WAS THE INTENT OF AMENDMENT NO. 1 OF 12 APRIL 1962 TO CORRECT THE OMISSION OF THE HUNTING FEE CLAUSE FROM THE ORIGINAL OBLIGATION DOCUMENT. BUT IT WAS NOT THE INTENT OF THAT AMENDMENT TO CREATE A BASIS FOR INDEMNIFYING THE COMMUNITY FOR ANY HUNTING DISADVANTAGES IN THE AREAS NOT DOCUMENTED AND OCCUPIED BY THE US FORCES *** ."

IN ADDITION, 1ST INDORSEMENT DATED JULY 17, 1969, FROM THE SAME HEADQUARTERS TO THE U.S. FORCES LIAISON OFFICER, RHEINLAND-PFALZ AND SAARLAND (AEUEC-LRF, 14 MAR 69) EXPLAINED THE LANGUAGE OF AMENDMENT NO. 1 RELATING TO ADJUSTMENT OF COMPENSATION FOR LOSS OF HUNTING RIGHTS AS FOLLOWS:

" *** IT SHOULD BE EMPHASIZED AT THIS POINT THAT THE ORIGINAL INTENT IN INCLUDING THE ABOVE CLAUSE IN THE AMENDMENT WAS TO CREATE A BASIS FOR LATER ADJUSTMENT, IF ANY, OF THE RENT (INCLUDING LOSS OF HUNTING FEES) FOR THE US CONTROLLED PORTIONS OF THE COMMUNITY OWNED FOREST. THE ADJACENT FOREST AREAS RETAINED BY THE COMMUNITY HAD TO BE MENTIONED SINCE THAT AREA WAS THE ONLY HUNTING PRESERVE IN THE LOCALE SUITABLE FOR COMPARISON. ANOTHER REASON FOR MENTIONING THE COMMUNITY RETAINED FOREST PORTIONS IN THE CLAUSE WAS THAT THE REMUNERATION AGREED UPON AND PAID BY THE US FORCES WITH THE RENTAL CONSIDERATION WAS CALCULATED ON THE BASIS OF HUNTING FEES OBTAINED BY THE COMMUNITY FROM GERMAN TENANT HUNTERS ON THE ADJACENT NON- US CONTROLLED FOREST AREA." SINCE THE ORIGINAL INTENT OF THE PARTIES IN THIS RESPECT IS AT BEST UNCERTAIN, THE DOCTRINE OF REFORMATION IS NOT HERE APPLICABLE. MOREOVER, WE DO NOT PERCEIVE ANY OTHER PRINCIPLE OF CONTRACT LAW WHICH WOULD SUPPORT THE PAYMENT OF COMPENSATION FOR LOSS OF HUNTING REVENUES IN THE ADJACENT TRACT IN THIS CASE. ACCORDINGLY, WE MUST CONCLUDE THAT THERE EXISTS NO CONTRACTUAL BASIS FOR ALLOWANCE OF THIS PORTION OF THE CLAIM BY THIS OFFICE.

THE FOREGOING CONCLUSION DOES NOT, HOWEVER, PRECLUDE THE POSSIBILITY OF SETTLEMENT OF THAT PORTION OF THE CLAIM INVOLVING THE ADJACENT TRACT BY THE DEPARTMENT OF THE ARMY IN ACCORDANCE WITH 10 U.S.C. 2734. INDICATED ABOVE CHAPTER 10 OF AR 27-20 PROVIDES GENERALLY FOR SETTLEMENT OF FOREIGN CLAIMS (OTHER THAN CONTRACT CLAIMS) FOR DAMAGE TO REAL PROPERTY; AND PARAGRAPH 10-10(C)(1) THEREOF SPECIFICALLY PROVIDES FOR ALLOWANCES "FOR THE USE AND OCCUPANCY OF REAL PROPERTY ARISING OUT OF TRESPASS OR OTHER TORT, EVEN THOUGH CLAIMED AS RENT." OF COURSE, WE EXPRESS NO VIEW AS TO THE MERITS OF THE CLAIM UNDER 10 U.S.C. 2734; NOR DO WE SUGGEST THAT THE DEPARTMENT OF THE ARMY MUST GIVE FURTHER CONSIDERATION TO THIS MATTER.

FOR THE REASONS STATED HEREIN, THE FEDERAL REPUBLIC OF GERMANY (GERMAN FEDERAL ASSETS OFFICE) IS ENTITLED TO PAYMENT OF DM 480, REPRESENTING COMPENSATION FOR DIMINISHED HUNTING REVENUES IN THE OCCUPIED TRACT FROM APRIL 1, 1961, TO DECEMBER 31, 1964, IN ACCORDANCE WITH THE OBLIGATION DOCUMENT AS AMENDED. OUR TRANSPORTATION AND CLAIMS DIVISION (GENERAL CLAIMS) UPON RECEIPT OF A SIGNED CLAIM FROM THE CLAIMANT WILL ALLOW THE CLAIM IN ACCORDANCE WITH THE FOREGOING.