The Foreign Claims Act

Military & Veterans Law: Tort Liability

The Foreign Claims Act (FCA) was enacted in 1982 in order to provide compensation to persons in foreign countries who sustain personal injuries, who die, or who sustain property damage as a result of the actions of military personnel of the United States government while the personnel are stationed overseas. In order to be entitled to compensation, the loss must be caused by military personnel and must be incident to noncombat military activities.

Under the FCA, the United States government is liable for personal injuries, death, or real or personal property damage that is caused by military service members or by civilian employees of the military. Unlike the Federal Tort Claims Act, the loss does not need to occur as a result of an employee’s negligent or wrongful acts. The government is liable for all of its employees’ acts, even if the employees commit criminal acts.

Under the FCA, the United States government is liable for personal injuries, death, or real or personal property damage that is caused by noncombat military activities. Such activities include maneuvers, bombing exercises, aircraft operations, and sonic booms.

If a person who is seeking compensation under the FCA was responsible for his or her loss, that is, if the person was contributorily negligent, the person may or may not be entitled to recovery under the FCA. Whether the person’s claim is barred under a contributory negligence approach or under a comparative negligence approach will depend upon the law of the country in which the claim arose. The person will only be entitled to compensation if his or her own country would have allowed compensation.

The FCA applies to all claims that arise outside the United States. The claim is considered to arise outside the United States, even if the claim occurs on a United States military installation that is located overseas or even if the claim occurs in an area that is under the temporary or permanent jurisdiction of the United States.

Some countries have entered into treaties with the United States regarding claims, such as the NATO Status of Forces Agreement. If the provisions of the FCA conflict with such treaties, the treaties will usually take precedence over the FCA.

Certain types of claims are specifically excluded under the FCA. Those types of claims include contractual claims; domestic claims, such as child support and paternity claims; patent infringement claims; claims that are directly or indirectly related to combat activities; or admiralty claims.