Liability of the Srarioning Forces for 'Scope Claims' and 'Ex Grana Claims' in the Federal Republic of Germany

• Author: Edmund H. Schwenk
• Pages: 02

1. INTRODUCTION

The provisions of the NATO Status of Farces Agreement con-cerning the settlement of damages caused by members of a force or civilian component are contained in Article VIII, as implemented in the Federal Republic of Germany by .hticle 41, Supplementary Agreement to the NATO Starus of Forces Agreement, and by Re -4rticle 41, Protocol of Signature. There damages hare been dirided into three categories. 1. "Scope claims," that IS, damages other than maneuver damages or requisition damages that hare been caused by members af a force or civilian component and for which the force is legally responsible; 2. "Maneuver claims," that is, damages caused by maneuvers or other exercises, 3. "Requisition damages," that is, damages caused to property made available to a force or civilian component for their exclusive use as a result of a requisition order

11. RECOGSIZED CLAIVS ARISISG FROM TORTS

1. GENERAL

   Pursuant to paragraphs 5 and 6 of Article VI11 of the SAT0 Starus of Forces Agreement, two types of claims are recognized: (I) "Scope claims," that is, claims arising out af acts or omissions of members of a farce or civilian component that are committed in the performance of aficial duty, or out of any other act, omission or

   e The opinions end cmduiioni presented hercin ITE rhme of the author md do not nieirrrtilv reorrrcnt the viwi of The ludzc Advocate Gmrrrh School

   I 1

   . _

   or my orhcr govemmenrsl agency.

   '* Arrorncy-Advisor. Office of the Judge Advocsrc. US Army. Europe md Svenrh Army; Membu of rhe Diirricf of Columba, US Supreme Court, and Girmln Bir; Mcmhr of the B u of the U.S. Court of Mihruy Appel; Honorq Proferror of Law st chi Univenity of Heidclkrg/Gmnmy; LLD.. 1929, Brerlivl Germmy, LL.M., 1941, Tulm Univcdr)-. LLM. 1942, Hmud Univeniry.

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   occurrence for which a force or civilian component 1s leeall!- responsible and that causes damaoe m the terricorv af [heFederal Republic of German!- to rhird Farties other rhan'any of the Contracting Parties: and (2) "Tonscope claims." that is. claims aeainsr members of a force or civilian component arisinm oii~of takous

   acts or omissions in the Federal Republic of Germazv nor committed in the performance of official duty.

   Both scope claims and nonscope claims are claim for dmaeei. therefore. restrairung actions as a result of slander, libel. or nuisa'nce cornnutred b>- a member of a force or civilian component in the performance of official dutv or bv the farce itself cannot be predicated upon the provisions of parag;aph 5 of Article VIII, XATO Status of Forces Agreemenr.' .\loreo\er, a restraining order against the sending Stare would be ~n iiolation of international Ian in iiem of the mereignty of that foreign stare.

2. SCOPE CLA1.M 1. Claim ngainri the Forcer in the Federal Republic of Germmy

   Scope claims may be bared upon paragraph I of lrricle VIII.

   TO Status of Forces .Agreement, as implemented bv Article 41. ipplementary .igreement to the TdTO Starus of Forces Agreement. in connection with the German legal provisions concerrung rhe liability for [orti or special statutes. Article 41. Supplemenrary Aprcemenr, provider that the setrlement of claims mirh respect to damages caused by acrs 01 omissmni of a force. 2 civilian componetnt or rheir members. 01 by other O C C U T ~ ~ ~ C ~ S

   for which a iarcc or a cirilian component is leeallr responsible. shall be eoxerned br the proriiioni of .Article VIIiof the SAT0 Starus of Forcer Agreement and the pro~isioni of .brick 41. Supplemenrary Agreement Paragraph I of Article 1.111, N.iTO Status of Forces Agreement. establishes r"o separate and datincr grounds for clams. (1) Claims arisine ouc of acts 01 omissions of members of a force or cixilian compkent done in the performance of official dury and causing damage in rhe rerrirorv of the receiving State to third parries, and ( 2 ) Claims arisine our' of an act. omissin or occurrence for nhich a farce 01 ciiilian component is legallr responsible and causing dan:age m the territory of the receiring'Stare to rhird parties

   'Gcmsn Supreme Court decision of July 11. 1963, 1963 B~rlu~wsuuna :BB1

   1077, 1963 SI=

   Jminircu~ Wacxeric~arrr [KIWI 20. 1963 DEL%?= Orr LYrLImE \'E'EawiLrcrr DOVl 81158

   SCOPE CULMS

   The damage to third parties must haw occurred in the rerri-tory af the receiring State, in this case the Federal Republic of Germany. The decisne issue 1s whether the damage actually took place within the teriitory of the Federal Republic of Germanv. This

   IS true regardless of whether the act or omission which uliimately causes the damage occurred outside the Federal Republic of German!-. It should be noted that \Vest Berlin is not regarded as part of the territory- of the Federal Republic of Germanv with respect to damages caked by the stationing farces because of its continuing military occupation statui.

   2. Clninir for Damager Ariiiizg out of Acrr or Omissioni Done by 114emberi of a Force or Cirilim Componmt

   Pursuant to paragraph 5(a) of Arricle VIII, >-AT0 Status of Forces Aoreemenr, the assertion, examination, and settlement of claims aricng our of damage caused by the forces, or the decision br

   a court, is made prsuanr tn the laws'and regulations of the Federal Republic of Germanv thar apply to its own armed farces. Accordingly, German laws apply in those cases where the "Bundeswehr," German -4rmed Forces, would be liable under the same circum-stances. In view of the equal treatment of fareion forces and those of the "Bundeswehr" it follows that, with respe% to acta and omissions of members of a force or cirilian component done in the performance of official duty, the provisions of Section 839, German Civil Code, in connection with Article 34, Basic Law. are appli-cabk2 lpplicarion of Article 34, Basic Law, requires violation of an official duty of a sorereirn nature. JT'hile the official activity of a member bf the stationhg forces mar not appear to be of '2

   sovereip name? in case of a soldier driding a military vehicle in the performance of official dutv the required connecrion between the armed services' mission and ;he particular trarel is ordinarily so

   &German Supreme Court docvion of October 24, 1%0, 1%1 SlW 457, 1961 \lorlrsrc~aar KRR Davrxnii Rrcm [ilDRl 210. German Supreme Couir decision of .

   1. SAT0 Stlrui of Forces Agrecmenr :heremnfrer referred ro as ?*TAT0 SOFA]; Sea d ~ o

      Geman Supreme

      Court decidan of Janusry 29, 1968, 49 BGHZ 267. 273, 1968 BB MI. 1568 NJW 6%.aGermin Supreme Courr decision of June I, 1961. 35 BGHZ 181. 187. 1961 BB in. 1961 Ir-JWlnz. Germm Supreme Court decisan of October I+, 196% 1964 BB 109, 1964 SIW 104, Germin Suoreme Courr decision of Aprrl 16, 1961, 42 BGHZ 176. 1%4 PIW 1891

      apparent rhar the sovereign nature of such a travel should be prc~ surned ' Coniequentl,v. if the defendant, the Federal Republic ai Germany in! oker such prima iacie eridence. the plainriff should hear the burden of proring thar the travel did not serve sovereign purposer. the German Supreme Caurr'r opinion' to rhe conrrarv is stmdable. On rhe other hand. unaurhorired driling ehicle. 'Schwvarzfahrr." by a member of rhe statioiung ares an official actirq despite rhe fact thar such acned by Army \There a member of a iurce or c1\ilian component uses his priiate rehicle ior official

      rrai 46, such use may. depending on rhe particular C I ~ C U ~ S T ~ ~ C ~ S

      consrimre official actnx-.. A claim for damages against the stationing forces for wllful nohion of m official duty br one uf their members does not ~ Y N pursuant to Section 819. German Civil Code, in connection with .lrricle 34, Basic Law. if, and to rhe entenr rhat. a social insurance carrier is bound to make compensarion to

      the inlured person." since Secrion 839, German Ciiil Code, prescribes that the l~abiir>-oi the torrfeaior and. hence. pursuanr IO

      Article 31. Basic Law, that of the government. is secondq This secondary liabilir>- u-auld be defeated li the social insurance carrier could recoier rhe social security payments from the armed forcer.g Forrhermore. rhe stationing forces cannot inLoke as a defense rhe special provisions excluding habdiry which are conrained in the German (Baiarian) civil sen ice Ian, since those provisions are Iimired to the relationship berxreen ciril servants and thelr em- 4German Supreme Court decirmn of Aprd 16, 19M. 12 BGHZ 1-6, 1%1 SJX' 1895. Gemin Supreme Courc decrrian of June 1. 1951. 31 BGHZ 181, Ger-man Supremc C o w deciiron of October 14, 1961. 1964 BB 109. IGerman Supreme Court decision 01 January 29, 1%8, 49 BGHZBB 491. 1958 uJ\V 5%bGermrn Supreme Court decision of Aprd 2E, 1965. 1965 KJW 1253 iiirh annor hi Schneider. German Supreme Coun deceion of 4pnl 16. 196i. 42 BGHZ

      SJ\T 211, German Supreme Court deciiion of Jinuaq 29. 1968. 19 BGHZ 25-2-1, 1948 BB 401, 1968 SJ\T

      596.

      QGermm Supreme Court decision of Jinvary 29, 1968. 49 BGHZ 267, 271. 148 BB MI. 1968 NJW 696, dm German Supreme Cam decision of Xorcmbcr 9, 1959. 11 BGHZ, 1MC NJW 241.

      SCOPE CL41M5

      players and are not designed for the benefit af third parties.10 Insofar as acts or omissions of members of a force or civilian component done in the performance of official duty are concerned, liability for damages pursuant to Section 839, German Civil Code, arises only if the member of a force or civilian component violates his official duty towards a third party. The provisions of the "Strassenver-kehrrordnung," Road Traffic Ordinance, constitute provisions imposing an official duty toward third pames within the meaning of Section 839, German Civil Code. This, however. becomes more questionable where internal Armv traffic regulations are violated by the drivers of Army vehicles, far example, rules prescribing more stringent speed limits than those prescribed by the "Strassenverkehrsordnung." Whether the violation of such an Army regulation also constitutes a violation of official duty towards a "third party" depends on the purpose of such internal regulations, whether they are specifically...