B-157912, DEC. 23, 1965

B-157912, DEC. 23, 1965

TO LT. COLONEL B. A. GRESICK:

REFERENCE IS MADE TO YOUR LETTER OF SEPTEMBER 24, 1965, FINCY-T, AND ENCLOSURES THERETO INCLUDING A VOUCHER DRAWN IN THE AMOUNT OF $42,726.70, IN FAVOR OF THE FEDERAL MINISTRY OF DEFENSE OF THE FEDERAL REPUBLIC OF GERMANY FOR CERTAIN OPERATING EXPENSES OF THE TODENDORF RANGE CLAIMED FOR THE PERIOD OF APRIL 1, 1958, THROUGH JUNE 30, 1960.

THE TODENDORF RANGE IS A COASTAL FIRING RANGE WHICH WAS AVAILABLE FOR USE BY THE UNITED STATES ARMY AND OTHERS DURING THE PERIOD IN QUESTION. THE ACTUAL AREA OF IMPACT OR DANGER FOR THE RANGE EXTENDED BEYOND THE THREE- MILE LIMIT OF THE COAST OF GERMANY. IN ORDER TO INSURE THE SAFETY OF THIS AREA IT WAS NECESSARY FOR THE FEDERAL REPUBLIC OF GERMANY TO COMPENSATE LOCAL FISHERMEN FOR LOSS OF CATCH AND TO INCUR EXPENSES WITH RESPECT TO THREE SAFETY BOATS MANNED BY LOCAL FISHERMEN EMPLOYED FOR THE PURPOSE OF CONTROLLING THE SAFETY AREA AND SALVAGING TARGETS.

UNTIL MARCH 31, 1958, THE EXPENSES INVOLVED WERE PAID BY THE FEDERAL MINISTRY OF FINANCE OF THE REPUBLIC OF GERMANY OUT OF THE SUPPORT COST BUDGET FOR CONSEQUENCES ARISING FROM THE STATIONING OF FOREIGN FORCES IN GERMANY. COMMENCING APRIL 1, 1958, THE FEDERAL MINISTRY CONSIDERED THAT IT NO LONGER HAD RESPONSIBILITY FOR THESE COSTS, ON THE GROUNDS THAT ON THAT DATE THE BUNDESWEHR HAD TAKEN OVER ADMINISTRATION OF THE RANGES WITH THE UNDERSTANDING THAT USERS OF THE RANGE WOULD FINANCE THE COSTS ATTENDANT TO MAINTAINING THE RANGE FREE FROM INTERFERENCE. THROUGH OVERSIGHT OR CONFUSION WITHIN THE VARIOUS GERMAN AGENCIES INVOLVED, THEY FAILED TO ADVISE THE APPROPRIATE UNITED STATES ELEMENTS OF THE CHANGE IN FINANCING PROCEDURE AND NO AGREEMENT WAS CONCLUDED TO COVER UNITED STATES LIABILITY. THE VOUCHER ENCLOSED WITH YOUR LETTER RELATES TO THE UNITED STATES SHARE OF THE COST OF COMPENSATING FISHERMEN. APPARENTLY, THERE ARE SOME QUESTIONS TO BE RESOLVED CONCERNING RESPONSIBILITY FOR THE COST RELATED TO THE SECURITY CRAFT, AND CLAIM FOR THESE COSTS HAS NOT YET BEEN FORMALLY PRESENTED.

THE UNITED STATES SHARE OF THE EXPENSES CLAIMED FOR REIMBURSEMENT BY THE FEDERAL REPUBLIC OF GERMANY HAS BEEN COMPUTED ON THE BASIS OF AN APPORTIONMENT OF TOTAL COSTS DISTRIBUTED TO THOSE ENTITIES FOR WHICH THE RANGE WAS MADE AVAILABLE, WITHOUT REGARD TO THE ACTUAL USE MADE BY THEM OF THE RANGE FACILITIES. THE RECORD DOES NOT SHOW TO WHAT EXTENT, IF ANY, THE UNITED STATES MADE USE OF THE FACILITIES DURING THE PERIOD COVERED. HOWEVER, THE RECORD DOES SHOW THAT FROM MAY 12, 1961, TO DATE THE UNITED STATES HAS NOT UTILIZED THE TODENDORF RANGE FACILITIES. ON THAT DATE THE FEDERAL REPUBLIC OF GERMANY AND THE UNITED STATES ENTERED INTO A WRITTEN AGREEMENT WHICH PROVIDED FOR THE RELEASE OF CERTAIN FACILITIES UNDER THE CONTROL OF UNITED STATES FORCES AT CAMP TODENDORF TO THE FEDERAL REPUBLIC OF GERMANY PRESERVING FOR THE UNITED STATES THE PRIVILEGE OF UTILIZING RANGE FACILITIES BUT FOR WHICH PAYMENT WOULD BE MADE ONLY UPON ACTUAL USE.

IF, UNDER THE CIRCUMSTANCES, THE UNITED STATES IS TO BE FOUND LIABLE TO THE FEDERAL REPUBLIC OF GERMANY IN THE AMOUNT CLAIMED, SUCH LIABILITY MUST BE FOUNDED UPON SOME AGREEMENT--- EXPRESS OR IMPLIED--- TO SHARE IN THE EXPENSES INCURRED. AN EXPRESS AGREEMENT COVERING THE SPECIFIC SITUATION WAS NOT CONCLUDED, AND WE ARE NOT AWARE OF ANY GENERAL GOVERNMENT-TO- GOVERNMENT AGREEMENT UNDER WHICH THE CLAIM WOULD FALL. THE QUESTION TO BE RESOLVED, THEREFORE, IS WHETHER THE FACTS OF THE MATTER MAY BE VIEWED AS GIVING RISE TO AN IMPLIED PROMISE ON THE PART OF THE UNITED STATES TO PAY THE FEDERAL REPUBLIC OF GERMANY A PROPORTIONATE AMOUNT OF THE EXPENSES INCURRED IN KEEPING THE RANGE FACILITIES SAFE AND AVAILABLE FOR THE UNITED STATES USE, WITHOUT REGARD TO ACTUAL USE MADE OF THE FACILITIES.

IT MAY BE STATED GENERALLY THAT AN IMPLIED CONTRACT ARISES WHERE THE INTENTION OF THE PARTIES IS NOT EXPRESSED BUT AN AGREEMENT IN FACT CREATING AN OBLIGATION IS IMPLIED OR PRESUMED FROM THEIR ACTS, OR AS IT HAS BEEN OTHERWISE STATED, WHERE THERE ARE CIRCUMSTANCES WHICH, ACCORDING TO THE ORDINARY COURSE OF DEALING AND COMMON UNDERSTANDING OF MAN, SHOW A MATERIAL INTENT TO CONTRACT, 17 C.J.S., CONTRACTS SEC. 4. IN THE INSTANT SITUATION, THE RECORD FAILS TO SHOW ANY EVIDENCE OF INTENTION CONCERNING BY THE UNITED STATES TO BE BOUND UPON THE BASIS CLAIMED. WHILE IT IS TRUE THAT RANGE FACILITIES WERE MADE AVAILABLE FOR THE BENEFIT OF THE UNITED STATES DURING THE PERIOD COVERED BY THE CLAIM, IT MUST BE RECOGNIZED THAT THESE FACILITIES WERE LIKEWISE AVAILABLE TO THE UNITED STATES PRIOR TO SUCH PERIOD WITHOUT CHARGE AND THAT NO NOTIFICATION HAD BEEN RECEIVED BY THE UNITED STATES TO THE EFFECT THAT CONTINUED AVAILABILITY OF THE RANGE WOULD BE AT A PRICE. ALSO, WHILE WE APPRECIATE THAT THE FEDERAL REPUBLIC OF GERMANY CLAIMS REIMBURSEMENT ON THE BASIS OF AVAILABILITY RATHER THAN ACTUAL USE OF THE RANGE BY THE UNITED STATES BECAUSE THE EXPENSES INVOLVED WERE INCURRED IRRESPECTIVE OF RANGE USE, WE MUST ALSO NOTE THAT THE RECORD DOES NOT SHOW TO WHAT EXTENT THESE EXPENSES WERE INCURRED FOR THE SPECIFIC BENEFIT OF THE UNITED STATES. THAT IS, WOULD THE EXPENSES WHICH THE UNITED STATES IS NOW BEING REQUESTED TO SHARE IN HAVE BEEN INCURRED REGARDLESS OF WHETHER THE RANGE WAS AVAILABLE FOR UNITED STATES USE? AND, FINALLY, THE RECORD DOES NOT SHOW WHAT USE THE UNITED STATES ACTUALLY MADE OF THE RANGE. IF SUCH USE WAS MINIMAL AND IF MINIMAL USE WAS FORESEEABLE AT THE POINT IN TIME WHEN AVAILABILITY OF THE RANGE SHOULD HAVE BEEN CHANGED BY THE FEDERAL REPUBLIC OF GERMANY FROM A FREE TO A COST BASIS, IT WOULD SEEM REASONABLE TO CONCLUDE THAT THE UNITED STATES MIGHT NOT HAVE AGREED TO COST SHARING ON THE BASIS CLAIMED BUT, RATHER, WOULD HAVE ARRANGED, AS IT DID IN 1961 FOR PAYMENT UPON ACTUAL USE.

WE RECOGNIZE THAT THE POINTS WE HAVE RAISED CONTAIN SUBSTANTIAL ELEMENTS OF CONJECTURE; HOWEVER, THEY DO POINT UP THE OBSTACLES CONFRONTING ANY ATTEMPT TO CONCLUDE FROM THE RECORD BEFORE US THAT THE CLAIM IN QUESTION IS ONE FOR WHICH THE UNITED STATES IS LIABLE. ACCORDINGLY ON THE BASIS OF THE PRESENT RECORD THE CLAIM PRESENTED BY THE FEDERAL REPUBLIC OF GERMANY MUST BE DENIED.