US govt position on damage to Tubbataha Reef: litigate it under the U.S. Foreign Claims Act
On President PNoy’s pronouncement that “the United States Navy be held answerable under Philippine laws for the damage caused by the grounding of a US 7th Fleet warship in Tubbataha Reefs”: Wake up, buttercup! The U.S. government legal position on this as articulated by USS Guardian spokesman Lt. Cdr. James Stockman last week (reported by GMA News Online and other media organizations), and which has not been contradicted by any of the USS Guardian officers, is: “Should a claim for damages be filed, it will be handled in accordance with the Foreign Claims Act.” (USS Guardian Spokesperson Lt. Cdr. Stockman).
Open your eyes. The U.S. does not recognize Philippine law and jurisdiction for any claims for damages caused to the Tubbataha Reef by the USS Guardian. The Foreign Claims Act is U.S. federal law, in particular, U.S. military law: it applies to injury, death, or property damage sustained by inhabitants of a foreign country due to noncombat activities of members of the U.S. armed forces overseas; it says “foreign country includes any place under the jurisdiction of the United States in a foreign country.”; the U.S Judge Advocate General’s Corps will adjudicate it; there is a ceiling of $100,000 for recoverable damages (or P4 million pesos at $1 to P40) and any damages in excess of that amount would have to be filed with the U.S. Treasury to be decided by that office.
“10 USC § 2734 – Property loss; personal injury or death: incident to noncombat activities of the armed forces; foreign countries
“(a) To promote and to maintain friendly relations through the prompt settlement of meritorious claims, the Secretary concerned, or an officer or employee designated by the Secretary, may appoint, under such regulations as the Secretary may prescribe, one or more claims commissions, each composed of one or more officers or employees or combination of officers or employees of the armed forces, to settle and pay in an amount not more than $100,000, a claim against the United States 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;
“(2) damage to, or loss of, personal property of any foreign country or of any political subdivision or inhabitant of a foreign country, including property bailed to the United States; or
“(3) personal injury to, or death of, any inhabitant of a foreign country;
“if the damage, loss, personal injury, or death occurs outside the United States, or the Commonwealths or possessions, and is caused by, or is otherwise incident to noncombat activities of, the armed forces under his jurisdiction, or is caused by a member thereof or by a civilian employee of the military department concerned or the Coast Guard, as the case may be. The claim of an insured, but not that of a subrogee, may be considered under this subsection. In this section, “foreign country” includes any place under the jurisdiction of the United States in a foreign country. An officer or employee may serve on a claims commission under the jurisdiction of another armed force only with the consent of the Secretary of his department, or his designee, but shall perform his duties under regulations of the department appointing the commission.
“(b) A claim may be allowed under subsection (a) only if—
“(1) it is presented within two years after it accrues;
“(2) in the case of a national of a country at war with the United States, or of any ally of that country, the claimant is determined by the commission or by the local military commander to be friendly to the United States; and
“(3) it did not arise from action by an enemy or result directly or indirectly from an act of the armed forces of the United States in combat, except that a claim may be allowed if it arises from an accident or malfunction incident to the operation of an aircraft of the armed forces of the United States, including its airborne ordnance, indirectly related to combat, and occurring while preparing for, going to, or returning from a combat mission.
“(c) The Secretary concerned may appoint any officer or employee under the jurisdiction of the Secretary to act as an approval authority for claims determined to be allowable under subsection (a) in an amount in excess of $10,000.
“(d) If the Secretary concerned considers that a claim in excess of $100,000 is meritorious, and the claim otherwise is payable under this section, the Secretary may pay the claimant $100,000 and report any meritorious amount in excess of $100,000 to the Secretary of the Treasury for payment under section 1304 of title 31.
“(e) Except as provided in subsection (d), no claim may be paid under this section unless the amount tendered is accepted by the claimant in full satisfaction.
“(f) Upon the request of the department concerned, a claim arising in that department and covered by subsection (a) may be settled and paid by a commission appointed under subsection (a) and composed of officers of an armed force under the jurisdiction of another department.
“(g) Payment of claims against the Coast Guard arising while it is operating as a service in the Department of Homeland Security shall be made out of the appropriation for the operating expenses of the Coast Guard.
“(h) The Secretary of Defense may designate any claims commission appointed under subsection (a) to settle and pay, as provided in this section, claims for damage caused by a civilian employee of the Department of Defense other than an employee of a military department. Payments of claims under this subsection shall be made from appropriations as provided in section 2732 of this title.”