B-29694, NOVEMBER 5, 1942, 22 COMP. GEN. 446

B-29694, NOVEMBER 5, 1942, 22 COMP. GEN. 446

STATUTORY CONSTRUCTION; CLAIMS FOR PERSONAL INJURIES AND PROPERTY DAMAGE BY AMERICAN MILITARY FORCES IN FOREIGN COUNTRIES PURSUANT TO 1 U.S.C. 54, THE CONTENTS OF THE U.S.C. HAVE ONLY PRIMA FACIE EFFECT, AND THE QUESTION OF WHETHER A STATUTE IS STILL IN EFFECT IS FOR CONSIDERATION UNDER THE PRINCIPLES OF STATUTORY CONSTRUCTION WITHOUT REGARD TO ANY STATEMENTS CONTAINED IN THE CODE WITH RESPECT THERETO. THE ACT OF JANUARY 2, 1942, PERTAINING TO THE SETTLEMENT, GENERALLY, OF CLAIMS NOT EXCEEDING $1,000 FOR DAMAGES TO THE PROPERTY OR THE PERSONS OF INHABITANTS OF ANY FOREIGN COUNTRY CAUSED BY ARMY, NAVY OR MARINE CORPS FORCES, DOES NOT REPEAL OR SUPERSEDE THE ACT OF APRIL 18, 1918, WHICH AUTHORIZES SETTLEMENT OF CLAIMS OF INHABITANTS OF FRIENDLY EUROPEAN COUNTRIES FOR DAMAGE CAUSED BY AMERICAN MILITARY FORCES WITHOUT LIMITATION AS TO AMOUNT, SO THAT CLAIMS ARISING IN EUROPE NOT EXCEEDING $1,000 IN AMOUNT MAY BE DISPOSED OF UNDER EITHER ACT, IF THEY OTHERWISE CONFORM TO THE REQUIREMENTS OF EACH ACT, AND LARGER CLAIMS ARE FOR CONSIDERATION UNDER THE SAID ACT OF APRIL 18, 1918. THE ACT OF APRIL 18, 1918, PERTAINING TO THE SETTLEMENT OF CLAIMS OF INHABITANTS OF FRIENDLY EUROPEAN COUNTRIES FOR DAMAGES CAUSED BY AMERICAN MILITARY FORCES, IS APPLICABLE NOT ONLY TO CLAIMS FOR DAMAGE TO PROPERTY, BUT APPLIES, ALSO, TO CLAIMS ARISING FROM PERSONAL INJURY OR DEATH, INCLUDING CLAIMS FOR DAMAGES FOR PAIN, SUFFERING, LOSS OF EARNING CAPACITY, AND LOSS OF PROSPECTIVE SUPPORT, PROVIDED, IN ACCORDANCE WITH THE TERMS OF THE STATUTE, SUCH CLAIMS WOULD BE PAYABLE ACCORDING TO THE LAW OR PRACTICE GOVERNING THE MILITARY FORCES OF THE COUNTRY IN WHICH THEY OCCUR. UNDER THE ACT OF APRIL 18, 1918, PERTAINING TO THE SETTLEMENT OF CLAIMS OF INHABITANTS OF FRIENDLY EUROPEAN COUNTRIES FOR DAMAGES CAUSED BY AMERICAN MILITARY FORCES, CLAIMS MAY BE SETTLED FOR PROPERTY DAMAGE, PERSONAL INJURIES, OR DEATH CAUSED BY CRIMINAL ACTS OF MILITARY PERSONNEL, PROVIDED, IN ACCORDANCE WITH THE TERMS OF THE STATUTE, SUCH CLAIMS WOULD BE PAYABLE ACCORDING TO THE LAW OR PRACTICE GOVERNING THE MILITARY FORCES OF THE COUNTRY IN WHICH THEY OCCUR.

COMPTROLLER GENERAL WARREN TO THE SECRETARY OF WAR, NOVEMBER 5, 1942:

I HAVE YOUR LETTER OF OCTOBER 19, 1942, AS FOLLOWS:

THE WAR DEPARTMENT IS IN RECEIPT OF A COMMUNICATION FROM THE COMMANDING GENERAL, EUROPEAN THEATER OF OPERATIONS, IN WHICH IT IS REQUESTED THAT AUTHORITY BE GRANTED FOR THE SETTLEMENT, APPROVAL AND PAYMENT OF CLAIMS ARISING IN THAT THEATER OF OPERATIONS, CAUSED BY AMERICAN MILITARY FORCES WHICH GREW OUT OF PERSONAL INJURY OR DEATH UNDER THE AUTHORITY, AND SUBJECT TO THE CONDITIONS, OF THE ACT OF CONGRESS APPROVED APRIL 18, 1918, 40 STAT. 532; 5 U.S.C. 210. IN THIS CONNECTION REFERENCE IS MADE TO THE ACT OF JANUARY 2, 1942, 55 STAT. 880, AUTHORIZING THE SETTLEMENT OF CLAIMS ARISING IN FOREIGN COUNTRIES NOT TO EXCEED $1,000, AND PARTICULARLY TO SECTION 3 THEREOF.

THE SITUATION CALLED TO THE ATTENTION OF THE WAR DEPARTMENT BY THE COMMANDING GENERAL, EUROPEAN THEATER OF OPERATIONS, IS BROUGHT ABOUT BECAUSE OF THE LIMITATION AS TO AMOUNT FIXED BY THE CONGRESS IN THE ACT OF JANUARY 2, 1942, SUPRA. THE AUTHORITY CONTAINED THEREIN IS NOT FULLY ADEQUATE IN ALL CASES WHERE CLAIMS ARE PRESENTED AGAINST THE GOVERNMENT FOR PERSONAL INJURY OR DEATH BECAUSE SIMILAR CLAIMS AGAINST THE BRITISH GOVERNMENT ARE SETTLED WITHOUT ANY SUCH LIMITATION AND SOLELY WITH REGARD TO THE ACTUAL DAMAGES SUSTAINED. WITH A VIEW TO PROMOTING AND MAINTAINING FRIENDLY RELATIONS WITH EUROPEAN COUNTRIES IN WHICH THE AMERICAN TROOPS ARE STATIONED, IT SEEMS MANIFEST THAT STEPS SHOULD BE TAKEN AT ONCE TO CORRECT THE SITUATION AS INDICATED ABOVE.

THE WAR DEPARTMENT IS DESIROUS OF AUTHORIZING THE SETTLEMENT OF CLAIMS UNDER THE PROVISIONS OF THE ACT OF APRIL 18, 1918, SUPRA, IN ORDER TO ACCOMPLISH THIS PURPOSE IF SUCH A COURSE MAY BE LEGALLY PURSUED.

WITH A VIEW TO ANSWERING THE INQUIRY IN QUESTION, AND IN ORDER THAT PROPER INSTRUCTIONS MAY BE PROMULGATED IN THE PREMISES, YOUR DECISION IS REQUESTED ON THE FOLLOWING QUESTIONS, ASSUMING THAT ALL OF THE CONDITIONS OF THE ACT OF APRIL 18, 1918, ARE MET WITH RESPECT TO A GIVEN CLAIM:

A. IS THE ACT OF APRIL 18, 1918, 40 STAT. 532; 5 U.S.C. 210, STILL IN FORCE AND EFFECT WITH RELATION TO CLAIMS CURRENTLY ARISING IN EUROPE?

B. IF YOUR ANSWER TO THE ABOVE QUESTION IS IN THE AFFIRMATIVE, IS THE ACT OF APRIL 18, 1918, AVAILABLE FOR THE PAYMENT OF DAMAGES RESULTING FROM PERSONAL INJURY OR DEATH, AND IF SO, MAY AWARDS BE MADE FOR PAIN, SUFFERING, LOSS OF EARNING CAPACITY, AND, IN CONNECTION WITH DEATH CLAIMS, FOR LOSS OF PROSPECTIVE SUPPORT?

C. IS THE ACT OF APRIL 18, 1918, AVAILABLE FOR THE SETTLEMENT OF CLAIMS CURRENTLY ARISING IN EUROPE FOR PROPERTY DAMAGE AND FOR PERSONAL INJURY OR DEATH CAUSED BY THE CRIMINAL ACTS OF MILITARY PERSONNEL?

IN THIS GENERAL CONNECTION YOUR ATTENTION IS ALSO INVITED TO THE DECISIONS OF THE COMPTROLLER OF THE TREASURY CONTAINED IN 25 C.D. 896 AND 27 C.D. 365.

IN VIEW OF THE URGENCY OF THE MATTER, YOUR EARLY DECISION IS REQUESTED.

THE SAID ACT OF APRIL 18, 1918, 40 STAT. 532, READS:

THAT CLAIMS OF INHABITANTS OF FRANCE OR OF ANY OTHER EUROPEAN COUNTRY NOT AN ENEMY OR ALLY OF AN ENEMY FOR DAMAGES CAUSED BY AMERICAN MILITARY FORCES MAY BE PRESENTED TO ANY OFFICER DESIGNATED BY THE PRESIDENT, AND WHEN APPROVED BY SUCH AN OFFICER SHALL BE PAID UNDER REGULATIONS MADE BY THE SECRETARY OF WAR.

SEC. 2. THAT CLAIMS UNDER THIS STATUTE SHALL NOT BE APPROVED UNLESS THEY WOULD BE PAYABLE ACCORDING TO THE LAW OR PRACTICE GOVERNING THE MILITARY FORCES OF THE COUNTRY IN WHICH THEY OCCUR.

SEC. 3. THAT HEREAFTER APPROPRIATIONS FOR THE INCIDENTAL EXPENSES OF THE QUARTERMASTER CORPS SHALL BE AVAILABLE FOR PAYING THE CLAIMS HEREIN DESCRIBED.

SEC. 4. THAT THIS STATUTE DOES NOT SUPERSEDE OTHER MODES OF INDEMNITY NOW IN EXISTENCE AND DOES NOT DIMINISH RESPONSIBILITY OF ANY MEMBER OF THE MILITARY FORCES TO THE PERSON INJURED OR TO THE UNITED STATES.

THE ACT OF JANUARY 2, 1942, 55 STAT. 880, ALSO REFERRED TO IN YOUR LETTER, PROVIDES:

THAT DURING THE NATIONAL EMERGENCY DECLARED BY THE PRESIDENT ON MAY 27, 1941, TO EXIST, AND FOR THE PURPOSE OF PROMOTING AND MAINTAINING FRIENDLY RELATIONS BY THE PROMPT SETTLEMENT OF MERITORIOUS CLAIMS, THE SECRETARY OF WAR AND THE SECRETARY OF THE NAVY ARE HEREBY AUTHORIZED TO APPOINT A CLAIMS COMMISSION OR COMMISSIONS, COMPOSED OF OFFICERS OF THE ARMY, NAVY, OR MARINE CORPS, AS THE CASE MAY BE, TO CONSIDER, ADJUST, DETERMINE, AND MAKE PAYMENTS IN FINAL SETTLEMENT OF BONA FIDE CLAIMS ON ACCOUNT OF DAMAGES CAUSED BY ARMY, NAVY, AND MARINE CORPS FORCES, OR INDIVIDUAL MEMBERS THEREOF, IN A FOREIGN COUNTRY OR POSSESSION THEREOF, INCLUDING PLACES LOCATED THEREIN WHICH ARE UNDER THE TEMPORARY OR PERMANENT JURISDICTION OF THE UNITED STATES, TO THE PROPERTY, PUBLIC OR PRIVATE, OR THE PERSONS OF INHABITANTS OF SUCH FOREIGN COUNTRIES, WHERE THE AMOUNT OF SUCH CLAIM DOES NOT EXCEED $1,000: PROVIDED, THAT NO CLAIM SHALL BE CONSIDERED BY SUCH COMMISSIONS UNLESS PRESENTED WITHIN ONE YEAR FROM THE DATE OF THE ACCRUAL OF SAID CLAIM: PROVIDED FURTHER, THAT ANY SUCH SETTLEMENTS MADE BY SUCH COMMISSIONS UNDER THE AUTHORITY OF THIS ACT SHALL BE FINAL AND CONCLUSIVE FOR ALL PURPOSES, NOTWITHSTANDING ANY OTHER PROVISION OF LAW TO THE CONTRARY.

SEC. 2. ALL PAYMENTS IN SETTLEMENT OF CLAIMS UNDER SECTION 1 OF THIS ACT SHALL BE MADE OUT OF THE APPROPRIATION "PAY, SUBSISTENCE, AND TRANSPORTATION OF NAVAL PERSONNEL," AS TO NAVY AND MARINE CORPS CLAIMS, AND OUT OF SUCH APPROPRIATION FOR THE MILITARY ESTABLISHMENT AS MAY BE DETERMINED BY THE SECRETARY OF WAR AS TO ARMY CLAIMS.

SEC. 3. THIS ACT SHALL BE SUPPLEMENTARY TO, AND NOT IN LIEU OF, ALL OTHER PROVISIONS OF LAW AUTHORIZING CONSIDERATION, ADJUSTMENT, DETERMINATION, AND PAYMENT OF CLAIMS BY THE SECRETARY OF WAR AND THE SECRETARY OF THE NAVY, RESPECTIVELY.

THERE IS NOTED IN FEDERAL CODE ANNOTATED THE STATEMENT THAT THE SAID ACT OF APRIL 18, 1918, 5 U.S.C. 210, IS SUPERSEDED BY 31 U.S.C. 223 (54 STAT. 357). HOWEVER, SUCH POSITION DOES NOT APPEAR TENABLE, IN VIEW OF THE DIFFERENCES IN THE PROVISIONS AND APPARENT PURPOSES OF THE SAID SECTIONS. 31 U.S.C. 223 IS DERIVED FROM THE PROVISIONS OF SUCCESSIVE ARMY APPROPRIATION ACTS. IT IS EXPRESSLY LIMITED TO CLAIMS NOT EXCEEDING $500 EACH FOR DAMAGES TO PRIVATE PROPERTY INCIDENT TO THE TRAINING, OPERATION, ETC., OF THE ARMY. THE ACT OF APRIL 18, 1918, 5 U.S.C. 210, ON THE OTHER HAND, APPLIES TO CLAIMS OF INHABITANTS OF FRIENDLY EUROPEAN COUNTRIES FOR DAMAGES "CAUSED BY AMERICAN MILITARY FORCES," WITHOUT LIMITATION AS TO AMOUNT AND WITHOUT LIMITATION TO PROPERTY DAMAGE. IT HAS BEEN HELD THAT THE LATTER ACT INCLUDES CLAIMS FOR DAMAGES BY FORCES OF THE NAVY AND MARINE CORPS AS WELL AS OF THE ARMY. SEE 27 COMP. DEC. 365. THERE IS NOTED, ALSO, A STATEMENT IN A NOTE TO 5 U.S.C.A. 210 THAT THE SAID SECTION "HAS BECOME SECTION 223A OF TITLE 31, MONEY AND FINANCE; " BUT THERE APPEARS TO BE NO SECTION 223A OF TITLE 31 IN U.S.C.A. THE SAME ERROR OR OMISSION IS FOUND IN THE U.S.C. 1940 EDITION.

HOWEVER, SUBSECTION (A) OF SECTION 54, TITLE I, U.S. CODE, PROVIDES, IN SUBSTANCE, THAT THE CONTENTS OF THE CODE SHALL HAVE ONLY A PRIMA FACIE EFFECT. FURTHERMORE, IT HAS BEEN HELD THAT THE QUESTION WHETHER A STATUTE HAS BEEN REPEALED BY IMPLICATION IS A JUDICIAL QUESTION AND THAT A RECITAL IN A STATUTE THAT ANOTHER STATUTE HAD BEEN REPEALED IS NOT CONCLUSIVE. UNITED STATES V. CLAFLIN, 97 U.S. 546. SIMILARLY, SUBSEQUENT LEGISLATIVE RECOGNITION OF A REPEALED STATUTE DOES NOT AFFECT THE FACT OF REPEAL. DISTRICT OF COLUMBIA V. HUTTON, 143 U.S. 18, 27. ACCORDINGLY, THE QUESTION WHETHER THE ACT OF APRIL 18, 1918, SUPRA, IS STILL IN EFFECT IS FOR CONSIDERATION UNDER THE PRINCIPLES OF STATUTORY CONSTRUCTION WITHOUT REGARD FOR ANY STATEMENTS CONTAINED IN THE CODES WITH RESPECT THERETO.

THERE HAS NOT BEEN FOUND ANY STATUTE--- INCLUDING THE ACT OF JANUARY 2, 1942, SUPRA--- EXPRESSLY REPEALING THE PRIOR ACT OF APRIL 18, 1918; AND IT IS WELL SETTLED THAT REPEALS BY IMPLICATION ARE NOT FAVORED. IN SECTION 107 OF BLACK ON INTERPRETATION OF LAWS, SECOND EDITION, IT IS SAID:

REPEALS BY IMPLICATION ARE NOT FAVORED. A STATUTE WILL NOT BE CONSTRUED AS REPEALING PRIOR ACTS ON THE SAME SUBJECT (IN THE ABSENCE OF EXPRESS WORDS TO THAT EFFECT) UNLESS THERE IS AN IRRECONCILABLE REPUGNANCY BETWEEN THEM, OR UNLESS THE NEW LAW IS EVIDENTLY INTENDED TO SUPERSEDE ALL PRIOR ACTS ON THE MATTER IN HAND AND TO COMPRISE IN ITSELF THE SOLE AND COMPLETE SYSTEM OF LEGISLATION ON THAT SUBJECT. SEE, ALSO, UNITED STATES V. BORDEN CO., 308 U.S. 188, WHERE THE COURT, SPEAKING BY FORMER CHIEF JUSTICE HUGHES, SAID:

IT IS A CARDINAL PRINCIPLE OF CONSTRUCTION THAT REPEALS BY IMPLICATION ARE NOT FAVORED. WHEN THERE ARE TWO ACTS UPON THE SAME SUBJECT, THE RULE IS TO GIVE EFFECT TO BOTH IF POSSIBLE. UNITED STATES V. TYNEN, 11 WALL. 88, 92; HENDERSON'S TOBACCO, 11 WALL. 652, 657; GENERAL MOTORS ACCEPTANCE CORP. V. UNITED STATES, 286 U.S. 49, 61, 62. THE INTENTION OF THE LEGISLATURE TO REPEAL "MUST BE CLEAR AND MANIFEST.' RED ROCK V. HENRY, 106 U.S. 596, 601, 602. IT IS NOT SUFFICIENT AS WAS SAID BY MR. JUSTICE STORY IN WOOD V. UNITED STATES, 16 PET. 342, 362, 363,"TO ESTABLISH THAT SUBSEQUENT LAWS COVER SOME OR EVEN ALL OF THE CASES PROVIDED FOR BY (THE PRIOR CT); FOR THEY MAY BE MERELY AFFIRMATIVE, OR CUMULATIVE, OR AUXILIARY.' THERE MUST BE "A POSITIVE REPUGNANCY BETWEEN THE PROVISIONS OF THE NEW LAW, AND THOSE OF THE OLD; AND EVEN THEN THE OLD LAW IS REPEALED BY IMPLICATION ONLY PRO TANTO TO THE EXTENT OF THE REPUGNANCY.' SEE, ALSO, POSADOS V. NATIONAL CITY BANK, 296 U.S. 497, 504.

THE ACT OF JANUARY 2, 1942, SUPRA, RELATES TO CLAIMS FOR DAMAGES TO THE PROPERTY OR PERSONS OF INHABITANTS OF ANY FOREIGN COUNTRY OR POSSESSIONS THEREOF CAUSED BY ARMY, NAVY OR MARINE CORPS FORCES. HOWEVER, IT IS EXPRESSLY LIMITED TO THE PERIOD OF THE EMERGENCY DECLARED BY THE PRESIDENT ON MAY 27, 1941, AND TO CLAIMS NOT EXCEEDING $1,000. THE ACT OF APRIL 18, 1918, ON THE OTHER HAND, IS NOT LIMITED AS TO TIME OR AS TO THE AMOUNT OF ANY CLAIM THEREUNDER; AND IT CONTAINS A PROVISION-- NOT FOUND IN THE SAID ACT OF JANUARY 2, 1942--- THAT CLAIMS "SHALL NOT BE APPROVED UNLESS THEY WOULD BE PAYABLE ACCORDING TO THE LAW OR PRACTICE GOVERNING THE MILITARY FORCES OF THE COUNTRY IN WHICH THEY OCCUR.' ALTHOUGH THE TWO SAID ACTS COVER PORTIONS OF THE SAME GENERAL SUBJECT, IT CAN HARDLY BE SAID THAT THERE IS AN "IRRECONCILABLE REPUGNANCY" BETWEEN THEM OR THAT THE INTENTION OF THE CONGRESS TO REPEAL THE PRIOR ACT IS "CLEAR AND MANIFEST," PARTICULARLY IN VIEW OF THE PROVISION OF SECTION 3 OF THE LATER ACT, 55 STAT. 880, THAT THE ACT "SHALL BE SUPPLEMENT TO, AND NOT IN LIEU OF, ALL OTHER PROVISIONS OF LAW AUTHORIZING CONSIDERATION, ADJUSTMENT, DETERMINATION, AND PAYMENT OF CLAIMS BY THE SECRETARY OF WAR AND THE SECRETARY OF THE NAVY, RESPECTIVELY.' SEE WOOD V. UNITED STATES, 16 PET. 342.

IN VIEW OF THE FOREGOING, I AM INCLINED TO THE VIEW THAT THE SAID ACT OF APRIL 18, 1918, HAS NOT BEEN REPEALED OR SUPERSEDED AND THAT THE SAID ACT OF JANUARY 2, 1942, MAY BE REGARDED AS CUMULATIVE AND SUPPLEMENTARY THERETO. ACCORDINGLY, YOUR FIRST QUESTION IS ANSWERED IN THE AFFIRMATIVE. IT FOLLOWS, THEREFORE, THAT CLAIMS NOT EXCEEDING $1,000 IN AMOUNT MAY BE CONSIDERED AND DISPOSED OF UNDER EITHER OF THE SAID ACTS, IF OTHERWISE CONFORMING TO THE REQUIREMENTS OF EACH ACT; AND THAT LARGER CLAIMS OF INHABITANTS OF FRIENDLY EUROPEAN COUNTRIES WOULD BE FOR CONSIDERATION ONLY UNDER THE ACT OF APRIL 18, 1918. SEE 2 COMP. GEN. 529. IN THIS CONNECTION, IT IS TO BE OBSERVED THAT CLAIMS ARE NOT WITHIN THE SCOPE OF THE ACT OF APRIL 18, 1918,"UNLESS THEY WOULD BE PAYABLE ACCORDING TO THE LAW OR PRACTICE GOVERNING THE MILITARY FORCES OF THE COUNTRY IN WHICH THEY OCCUR.' SEE 1 COMP. GEN. 745, WHEREIN IT WAS HELD THAT A CLAIM FOR PROPERTY STOLEN BY A SOLDIER FOR HIS PERSONAL USE NOT IN LINE OF DUTY WAS NOT COGNIZABLE UNDER THE SAID ACT OF APRIL 18, 1918, INASMUCH AS SUCH CLAIM WOULD NOT BE PAYABLE ACCORDING TO THE LAW OR PRACTICE GOVERNING THE MILITARY FORCES OF FRANCE. SEE, ALSO, GENERAL ORDERS NO. 78, G.H.Q., A.E.F., MAY 25, 1918, PARAGRAPH 4, PART IV, OF WHICH PROVIDES THAT NO CLAIMS SHALL BE ALLOWED UNDER THE 1918 ACT "FOR DAMAGES CAUSED BY ACTS OF WAR (FAITS DE GUERRE).'

WITH RESPECT TO YOUR SECOND QUESTION, IT IS TO BE OBSERVED THAT THE SAID ACT OF APRIL 18, 1918, RELATES TO "DAMAGES CAUSED BY AMERICAN MILITARY FORCES" AND IS NOT EXPRESSLY LIMITED TO PROPERTY DAMAGE. INASMUCH AS THE USUAL AND ORDINARY MEANING OF THE WORD "DAMAGES" COVERS INJURY TO PERSONS AS WELL AS TO PROPERTY, IT MAY BE HELD THAT THE SAID ACT OF APRIL 18, 1918, IS APPLICABLE TO CLAIMS ARISING FROM PERSONAL INJURY OR DEATH AS WELL AS FROM DAMAGE TO PROPERTY, IF SUCH CLAIMS "WOULD BE PAYABLE ACCORDING TO THE LAW OR PRACTICE GOVERNING THE MILITARY FORCES OF THE COUNTRY IN WHICH THEY OCCUR," THERE BEING NOTHING IN THE SAID ACT TO INDICATE ANY CONTRARY INTENTION. SEE 8 COMP. GEN. 273. IN VIEW OF THE LANGUAGE OF THE STATUTE AND ITS APPARENT PURPOSE OF PROMOTING AND MAINTAINING FRIENDLY RELATIONS WITH EUROPEAN COUNTRIES IN WHICH AMERICAN MILITARY FORCES ARE PRESENT, THE SAME REASONING APPLIED IN THE PRECEDING PARAGRAPH APPEARS TO APPLY EQUALLY TO THAT PORTION OF YOUR SECOND QUESTION RELATING TO CLAIMS FOR DAMAGES BASED ON PAIN, SUFFERING, LOSS OF EARNING CAPACITY AND LOSS OF PROSPECTIVE SUPPORT; THAT IS TO SAY THAT SUCH CLAIMS MAY BE PAID UNDER THE SAID ACT OF APRIL 18, 1918, IF THEY WOULD BE PAYABLE ACCORDING TO THE LAW OR PRACTICE GOVERNING THE MILITARY FORCES OF THE COUNTRY IN WHICH THEY OCCUR. THIS CONCLUSION IS REACHED NOTWITHSTANDING THE GENERAL RULE OR PRACTICE DENYING CLAIMS AGAINST THE UNITED STATES FOR CONSEQUENTIAL, REMOTE OR SPECULATIVE DAMAGES AND FOR ITEMS OF DAMAGE NOT SUSCEPTIBLE OF DEFINITE ASCERTAINMENT, SUCH AS PAIN, ETC. SEE 5 COMP. GEN. 404; 8 COMP. GEN. 273; 26 COMP. DEC. 910.

YOUR THIRD QUESTION, AS TO CLAIMS ARISING FROM CRIMINAL ACTS OF MILITARY PERSONNEL, IS ANSWERED IN THE AFFIRMATIVE IF SUCH CLAIMS WOULD BE PAYABLE ACCORDING TO THE LAW OR PRACTICE GOVERNING THE MILITARY FORCES OF THE COUNTRY IN WHICH THEY OCCUR. IN THIS CONNECTION, SEE 1 COMP. GEN. 745, REFERRED TO ABOVE; 10 COMP. GEN. 229; 25 COMP. DEC. 896; 27 COMP. DEC. 365.

IN SUPPORT OF THE FOREGOING CONCLUSIONS ATTENTION IS INVITED TO THE LEGISLATIVE HISTORY OF THE SAID ACT OF APRIL 18, 1918. IN A LETTER DATED FEBRUARY 2, 1918, TO THE CHAIRMAN OF THE COMMITTEE ON MILITARY AFFAIRS HOUSE OF REPRESENTATIVES, PRINTED IN HOUSE REPORT NO. 341, 65TH CONGRESS, ACCOMPANYING THE BILL H.R. 9901, WHICH BECAME THE ACT OF APRIL 18, 1918, THE SECRETARY OF WAR STATED:

THE PROPOSED LAW PROVIDES FOR THE PROMPT PAYMENT, UNDER SUCH REGULATIONS AS THE SECRETARY OF WAR MAY MAKE OR MAY CAUSE TO BE MADE, OF CLAIMS FOR INJURIES TO PERSONS AND DAMAGE TO PROPERTY RESULTING FROM THE PRESENCE OF THE UNITED STATES MILITARY FORCES IN EUROPE. GEN. PERSHING INFORMS THE WAR DEPARTMENT THAT INABILITY TO PAY CLAIMS FOR INJURIES DUE TO ACCIDENTS CAUSED BY GOVERNMENT MOTOR VEHICLES AND OTHER CAUSES, RESULT IN MUCH HARDSHIP AND INJUSTICE TO FRENCH PEOPLE AND SERIOUSLY INJURES THE REPUTATION OF THE AMERICAN ARMY IN FRANCE AS COMPARED WITH THE REPUTATION OF THE BRITISH FORCES. SEE, ALSO, SENATE REPORT NO. 379, 65TH CONGRESS, ACCOMPANYING S. 4289, A COMPANION BILL TO H.R. 9901, IN WHICH REPORT IS PRINTED A LETTER DATED MARCH 27, 1918, FROM THE JUDGE ADVOCATE GENERAL TO THE CHAIRMAN OF THE COMMITTEE ON CLAIMS, UNITED STATES SENATE, QUOTING A CABLEGRAM FROM GENERAL PERSHING, IN PART AS FOLLOWS:

* * * WITH REFERENCE TO MY ENDORSEMENT OF JUNE 23 ON JUDGE ADVOCATE'S LETTER, SUBJECT: CLAIMS BY INHABITANTS OF FRANCE FOR DAMAGES CAUSED BY AMERICAN MILITARY, AND TO PARAGRAPH 5 OF YOUR CABLEGRAM 563, MOST URGENTLY RECOMMEND IMMEDIATE ENACTMENT OF LAWS PROVIDING THAT HEREAFTER APPROPRIATIONS FOR INCIDENTAL EXPENSES, QUARTERMASTER CORPS, SHALL BE AVAILABLE FOR THE PROMPT PAYMENT, UNDER SUCH REGULATIONS AS THE SECRETARY OF WAR MAY MAKE OR CAUSE TO BE MADE, BY THE COMMANDING GENERAL OF THE AMERICAN EXPEDITIONARY FORCE IN EUROPE OF CLAIMS FOR INJURIES TO PERSONS AND DAMAGE TO PROPERTY RESULTING FROM THE ACTS OR OMISSIONS OF THE UNITED STATES MILITARY FORCES IN EUROPE. INABILITY TO PAY CLAIMS FOR INJURIES DUE TO ACCIDENTS CAUSED BY GOVERNMENT MOTOR VEHICLES AND OTHER CAUSES RESULT IN MUCH HARDSHIP AND INJUSTICE TO FRENCH PEOPLE AND SERIOUSLY INJURES OUR REPUTATIONS AS COMPARED WITH BRITISH. PROPOSED LEGISLATION DESIGNED TO AUTHORIZE PROMPT SETTLEMENT OF THE CLAIMS OF INHABITANTS THAT WOULD BE PAID BY FRENCH GOVERNMENT UNDER FRENCH LAWS IF RESULTING FROM ACTS OF FRENCH FORCES. WE AVAIL OURSELVES OF FRENCH LAWS TO QUARTER OUR TROOPS IN HOMES OF THEIR PEOPLE, AND SHOULD THEREFORE CONFORM TO THE FRENCH LAWS IN OUR RELATION TO THEM AS NEARLY AS PRACTICABLE. * * *

IT DOES NOT APPEAR THAT ANY HEARINGS WERE HELD ON THE BILL WHICH BECAME THE ACT OF APRIL 18, 1918, BUT THE CONGRESSIONAL DISCUSSION INDICATES THE UNANIMOUS OPINION OF THOSE PARTICIPATING THAT THE LEGISLATION WOULD AUTHORIZE PAYMENT OF ALL CLAIMS WHICH WOULD BE PAYABLE "ACCORDING TO THE LAW OR PRACTICE GOVERNING THE MILITARY FORCES OF THE COUNTRY IN WHICH THEY OCCUR," INCLUDING CLAIMS FOR PROPERTY DAMAGE AND PERSONAL INJURY. PERTINENT PORTIONS OF SUCH DISCUSSION ARE HERE QUOTED AS FOLLOWS ( CONGRESSIONAL RECORD OF APRIL 8, 1918, VOL. 56, PART 5, PP. 4799 TO 4802):

MR. KAHN. MR. SPEAKER, IN THE ARMY APPROPRIATION BILL THERE HAS BEEN FOR MANY YEARS A PROVISION FOR THE APPROPRIATION OF A LUMP SUM TO PAY THE DAMAGES CAUSED IN THIS COUNTRY BY OUR TROOPS IN THEIR MANEUVERS - DAMAGES LIKE BROKEN WINDOWS, BROKEN FENCES, TRAMPING DOWN CROPS, AND SO ON. THIS SIMPLY ATTEMPTS TO DO THE SAME THING IN FOREIGN LANDS, WHERE OUR TROOPS ARE NOW OPERATING, OR IN A COUNTRY WHERE THEY MAY HAPPEN TO BE. THE WAR DEPARTMENT FEELS THAT IN EUROPEAN COUNTRIES, WHERE THE AMERICAN TROOPS DO DAMAGE OF ANY KIND, IT IS VERY DESIRABLE THAT THE INHABITANTS OF THESE COUNTRIES BE SPEEDILY PAID THE DAMAGE THAT HAS BEEN INCURRED.

THIS BILL SIMPLY PROVIDES FOR SUCH RELIEF AND GIVES THE WAR DEPARTMENT THE RIGHT TO PAY THE DAMAGES AS SOON AS THEY ARE INVESTIGATED BY AN ARMY OFFICER AND RECOMMENDED BY HIM FOR PAYMENT.

MR. WALSH. BUT THIS PROVIDES THAT DAMAGES WHICH ARE PAYABLE BY THE LAW OF THE COUNTRY IN WHICH THEY ARE COMMITTED COULD BE COMPENSATED FOR UNDER THIS ACT; SO THAT IF IN FRANCE CERTAIN DAMAGES ARE INFLICTED WHICH UNDER OUR LAW COULD NOT BE PAID FOR UNDER THIS ACT COMPENSATION WOULD HAVE TO BE MADE.

MR. KAHN. IT IS BELIEVED BY THE WAR DEPARTMENT THAT ON ACCOUNT OF THE COMITY THAT EXISTS BETWEEN THE TWO NATIONS WE OUGHT TO BE WILLING TO MEET THESE THINGS FRANKLY, FULLY, AND FREELY. THE PEOPLE OF FRANCE, OF COURSE, COOPERATING WITH OUR TROOPS, WOULD PROBABLY LOOK TO THE UNITED STATES TO PAY THEM FOR DAMAGES WHICH THEY COULD SECURE UNDER THEIR OWN LAW IF THEIR OWN SOLDIERS HAD DONE THE DAMAGE. I WANT TO SAY TO THE GENTLEMAN THAT I THINK THAT IN ALL NATIONS THE LAW IS PRACTICALLY IDENTICAL REGARDING DAMAGES DONE BY TROOPS DURING MANEUVERS.

MR. MILLER OF MINNESOTA. MR. SPEAKER, I WOULD LIKE TO ASK THE GENTLEMAN FROM ALABAMA A QUESTION, HAVING IN MIND WHAT THE GENTLEMAN FROM CALIFORNIA ( MR. KAHN) HAS JUST SAID THAT DAMAGES CONTEMPLATED TO BE COMPENSATED IN THIS WAY ARE CONFINED TO THOSE OF MANEUVERS, AND ONLY TO MANEUVERS.

MR. KAHN. MANEUVERS AND MOVEMENTS OF TROOPS.

MR. MILLER OF MINNESOTA. I WOULD INCLUDE THAT IN MANEUVERS--- MOVEMENTS OF TROOPS BACK AND FORTH. THE GENTLEMAN INTENDED TO INCLUDE UTILIZATION OF LAND FOR TRAINING PURPOSES?

MR. KAHN. NO.

MR. MILLER OF MINNESOTA. SCHOOL PURPOSES?

MR. KAHN. NO. BUT ASSUMING THAT IS THE IMPORT OF THE BILL, THERE CAN BE NO OBJECTION TO IT, BUT THAT IS NOT THE LANGUAGE OF THE BILL. THE LANGUAGE IS THIS:

"THAT CLAIMS OF INHABITANTS OF FRANCE OR OF ANY OTHER EUROPEAN COUNTRY FOR DAMAGES CAUSED BY AMERICAN MILITARY FORCES.'

THERE IS NOTHING TO CONFINE THAT TO MANEUVER, NOTHING TO CONFINE IT TO ANYTHING, BUT IT IS AS BROAD AND SWEEPING AS ANY LANGUAGE COULD POSSIBLY BE---

"CAUSED BY AMERICAN MILITARY FORCES.'

MR. KAHN. MR. SPEAKER, I DESIRE TO CALL THE GENTLEMAN'S ATTENTION TO SECTION 2.

MR. MILLER OF MINNESOTA. YES; I HAVE READ SECTION 2, AND THAT IN ONE SENSE LIMITS IT, BUT NOT IN THE SENSE I MENTIONED---

"THAT CLAIMS UNDER THIS STATUTE SHALL NOT BE APPROVED UNLESS THEY WOULD BE PAYABLE ACCORDING TO THE LAW OR PRACTICE GOVERNING THE MILITARY FORCES OF THE COUNTRY IN WHICH THEY OCCUR.'

AS THEY ARE LIKELY ALL TO OCCUR IN FRANCE OR POSSIBLY SOME IN BELGIUM, WHETHER OR NOT THE CASE CONSTITUTES A CLAIM DEPENDS UPON THE LOCAL LAW OF FRANCE AND BELGIUM, NOT UPON THE AMERICAN LAW, AND NOBODY HERE KNOWS WHAT THE LAW OF FRANCE OR BELGIUM IS OR WHAT IT WILL BE IN A WEEK OR TWO WEEKS FROM NOW. THAT IN ONE SENSE LIMITS IT, BUT NOT TO THE EXTENT THE CRITICISM INDICATED. * *

MR. GREEN OF IOWA. MR. SPEAKER, I THINK THIS BILL IS JUST EXACTLY IN THE FORM IT OUGHT TO BE NOW, AND I BELIEVE I CAN GIVE VERY GOOD REASONS FOR IT. THE SECOND SECTION PROVIDES---

"THAT CLAIMS UNDER THIS STATUTE SHALL NOT BE APPROVED UNLESS THEY WOULD BE PAYABLE ACCORDING TO THE LAW OR PRACTICE GOVERNING THE MILITARY FORCES OF THE COUNTRY IN WHICH THEY OCCUR.'

THAT IS ACCORDING TO THE LAW AND PRACTICE OF THE MILITARY FORCES IN FRANCE. NOW, IF THE FORCES IN FRANCE WERE OPERATING IN THIS COUNTRY, WE WOULD NOT WANT OUR LAWS TO BE ABROGATED. WE WOULD WANT COMPENSATION TO BE PAID IN ACCORDANCE WITH OUR LAW, AND THAT IS WHAT THE FRENCH WANT, AND THAT IS WHAT THEY OUGHT TO HAVE. WE COULD NOT AFFORD TO BE OTHERWISE THAN LIBERAL IN THESE MATTERS. WE CANNOT AFFORD TO STICK ON SMALL THINGS WHEN THE LAW OF FRANCE GIVES SOME COMPENSATION. WE OUGHT TO BE WILLING TO GIVE THE SAME COMPENSATION TO THE PEOPLE OF THAT COUNTRY THAT THEIR OWN LAWS GIVE TO THEM. THAT LIMITS AND PRESCRIBES EXACTLY WHAT SHALL BE PAID.

MR. WALSH. THE GENTLEMAN CONTENDS THAT THERE IS NO DISCRIMINATION AGAINST OUR TROOPS IN FRANCE AS AGAINST THE BRITISH TROOPS OR THE FRENCH TROOPS OR ANY OTHER TROOPS?

MR. GREEN OF IOWA. NONE WHATEVER. IT IS WHAT THE OTHER ARMIES ARE DOING. IF THAT IS WHAT THE BRITISH TROOPS ARE DOING, AS I UNDERSTAND THEY ARE; IF THAT IS WHAT THE FRENCH TROOPS ARE COMPELLED BY THEIR OWN GOVERNMENT TO DO, AND IT FOLLOWS THE CUSTOM OF OUR OWN MILITARY FORCES, THEN BEING OVER IN THAT COUNTRY AND FIGHTING BY THEIR SIDE, WE OUGHT TO BE WILLING TO DO THAT OURSELVES. I DO NOT THINK THE BILL NEEDS ANY CHANGE AS IT STANDS.

NOW, SOME CRITICISM WAS MADE BECAUSE THE BILL PROVIDED THAT THESE CLAIMS SHALL BE PAID WHEN APPROVED BY THE PROPER OFFICER. WHY NOT? WHEN WE HAVE HAD THEM SUBMITTED TO SOME OFFICER, AND HE HAS GONE OVER THEM AND EXAMINED THEM, AND FOUND THAT THEY CONFORM TO THE FRENCH LAW AND CUSTOM OF THE COUNTRY, AND THEN, AFTER HEARING THE EVIDENCE HE FINDS THAT THEY ARE JUST, WHY SHOULD THEY NOT THEN BE PAID? * * *

MR. KAHN. AND IF THE OFFICER OR SOLDIER IS PERFORMING SOME MILITARY DUTY AND DAMAGES PROPERTY IN THIS COUNTRY, OR, UNDER THIS LAW, DAMAGES A PERSON, THE DAMAGE OUGHT TO BE ALLOWED AND PAID. IN THIS COUNTRY IT IS PAID WHERE DAMAGES OF THAT KIND OCCUR.

MR. GREEN OF IOWA. MR. SPEAKER, I DO NOT CARE ANYTHING ABOUT THAT. THE POINT I AM TRYING TO MAKE IT THAT THIS PROVIDES FOR COMPENSATION IN THE SAME MANNER, AND ACCORDING TO THE LAW AND CUSTOM OF THE COUNTRY IN WHICH OUR TROOPS ARE OPERATING. THE SAME RULE APPLIES TO BRITISH TROOPS AND TO THEIR OWN TROOPS, AND IN FAIRNESS AND JUSTICE WE OUGHT TO BE WILLING TO DO THE SAME THING. AND EVEN IF WE SHOULD GO A LITTLE BEYOND WHAT WE WOULD CONSIDER PROPER IN THIS COUNTRY, IT SEEMS TOME THAT WE CAN UNDER NO CIRCUMSTANCES AFFORD TO HAVE ANY DIFFICULTY OR BAD FEELING CREATED. IT IS OF THE HIGHEST IMPORTANCE THAT GOOD FEELING SHOULD EXIST BETWEEN THE INHABITANTS OF FRANCE AND OTHER FRIENDLY COUNTRIES WHERE OUR TROOPS MAY BE OPERATING, AND EVEN IF WE SHOULD PAY SOME CLAIM THAT WAS SOMEWHAT EXAGGERATED, OR ONE FOR WHICH NO LIABILITY WOULD ARISE IN OUR OWN COUNTRY, IT WOULD BE WELL WORTH ALL IT COST IN SUSTAINING THE FRIENDLY FEELING THAT NOW EXISTS BETWEEN US AND THOSE WHO ARE OUR ALLIES IN FACT IF NOT IN NAME.

MR. ROBBINS. MR. SPEAKER, THE AMENDMENT IS ONLY INTENDED TO CLARIFY WHAT THE LAW SEEKS TO ACCOMPLISH. THE PURPOSES OF THE BILL ARE PERFECTLY PROPER. IT SIMPLY MEANS TO PAY DAMAGES WHERE DAMAGES ARE ALLOWED IN THE COUNTRIES WHERE THE AMERICAN EXPEDITIONARY FORCES MAY BE OPERATING AND COMMIT THOSE DAMAGES.

SUMMARIZING, IT IS MY OPINION THAT THE SAID ACT OF APRIL 18, 1918, HAS NOT BEEN REPEALED OR SUPERSEDED AND IS STILL IN FORCE AND EFFECT WITH RELATION TO PERTINENT CLAIMS CURRENTLY ARISING IN FRIENDLY EUROPEAN COUNTRIES AND THAT IT IS APPLICABLE TO ALL SUCH CLAIMS WHICH WOULD BE PAYABLE UNDER THE LAW OR PRACTICE PREVAILING IN THE COUNTRY IN WHICH THE CLAIMS ARISE. IT MAY BE POINTED OUT, HOWEVER, THAT SUCH A STATE OF THE LAW MAY GIVE RISE TO THE POSSIBILITY OF GREATER LIBERALITY IN THE SETTLEMENT OF CLAIMS ARISING IN EUROPEAN COUNTRIES THAN IN THE CASE OF EQUALLY MERITORIOUS CLAIMS ARISING IN OTHER PARTS OF THE WORLD.