« iepriekšējāTurpināt »
comments, are outlined in the following numbered paragraphs.
(1) "Vessels shall be deemed in sight of one another only when one can be observed visually from the other", New Rule 1c (ix). Comment: The above Rule, when read in conjunction with a new preliminary paragraph 4 under the Steering and Sailing Rules and new Part E "Sound Signals for Vessels in Sight of One Another" (replacing Part D, "Sound Signals for Passing Power-Driven Vessels") has the overall effect of making it unmistakably clear: (a) that radar is not to be considered a substitute for visual sighting and (b) no sound signal other than authorized fog signals may be used in a fog, excepting where the vessels actually sight each other, or, of course, distress signals. Thus the New Rules perpetuate the principle inherent in fog that all ships are burdened and none privileged. This fundamental must be retained against the inclination of the Naval mariner, who uses radar in all weather, subconsciously to categorize ships as burdened or privileged when "seen” on the radar.
Again, although the new rules are but a codification of existing law in respect of the use of sound signals in fog in International Waters, the additional repetition on their restricted use in the New Rules serves to reemphasize certain differences with the Inland Rules under which, for example, the four-blast danger signal has long been authorized in fog.?
(2) “A vessel engaged in laying or picking up a submarine cable ... or a vessel engaged in replenishment at sea or in the launching or recovery of aircraft when from the nature of her work she is unable to get out of the way of approaching vessels, shall carry .. New Rule 4(c) (italics supplied). Comment: This restatement of Rule 4 to include our Navy ships engaged in these specialized operations and requiring the display of lights and shapes heretofore reserved to cable laying ships, etc., will doubtless be hailed by all who have long struggled with the justification for Code Delta, two black balls, and "not under command" lights.
Nevertheless, a word of caution is particularly pertinent here in view of the massive frequency of these operations conducted in the vicinity of merchant ships. The qualifying phrase in the Rules "when from the nature of her work she is unable to get out of the way of approaching vessels” should be narrowly construed by Naval vessels and officers in tactical
command. Neither replenishing nor replenishment ships, by virtue of this activity alone, can be considered as unable to get out of the way of approaching vessels. The authorization of the special lights and shapes should not be used as a basis, for example, for failing to take appropriate evasive measures when burdened in a crossing situation with a merchantman. In like manner, aircraft carriers should continue to exercise extreme caution when conducting flight operations in the vicinity of merchant shipping. In summary, it may be stated that, because of the normal factual situation applying to our ships engaged in these specialized operations, the introduction of the special lights and shapes has two principal effects. First, it merely identifies their activity to others and secondly, the burden to prove that these specialized maneuvers were the proximate cause whereby they were "unable to get out of the way of approaching vessels” remains where it is—on the Naval vessels concerned.
An additional question raised by these new signals for naval vessels engaged in these specialized operations concerns what fog signals they should employ while so engaged. New Rule 15(c) (V), though it specifies the three blast (one prolonged followed by two short) signal for vessels “towing and engaged in laying or picking up a submarine cable” and “not under command” vessels, fails to identify replenishment ships and aircraft carriers expressly. That they may be included as ships “unable to maneuver as required by these Rules” (that is, the Rules of Conduct in Restricted Visibility) is suggested by reference, for example, to Rule 16 which requires, under certain circumstances the stopping of engines and navigating with caution, which may often entail reversing. The nature of the replenishment and carrier operations is such that stopping and most certainly reversing during the normal conduct of such operations would fully justify the use of the three blast signalin fog.
(3) Two New Rules, Rule 20 (6)—The Rule that a power-driven vessel shall normally keep out of the way of a sailing vessel, ". . . shall not give to a sailing vessel the right to hamper, in a narrow channel, the safe passage of a powerdriven vessel which can navigate only inside such channel”, and
Rule 25 (c)-"In a narrow channel, a powerdriven vessel of less than 65' in length shall not hamper the safe passage of a vessel which can
(Continued on page 119) 8. The Pennsylvania, 86 U.S. (19 Wall.) 125, 136 (1874).
7. The Virginian, 238 Fed. 156 (9th Cir. 1916).
E PERSONNEL CLAIMS REGULATIONS
(Continued from page 126) which a prior determination has been made that claims arising therefrom will be treated as "meritorious”.49 Although sections 2104i and 2128 do not specifically prohibit payment of claims arising from causes other than those named, it should be noted that very rarely are claims considered under these sections where the loss was allegedly caused by theft. In the rare case where such a claim has been considered, payment has been made only upon a showing that extreme precautions were taken to safeguard the motor vehicle from loss by theft. Even cases in which an above average degree of caution was exercised have not been approved.50
Undoubtedly, one reason for the narrow interpretation given sections 2104i and 2128 by the Judge Advocate General in the case of alleged theft of a motor vehicle has been the idea that losses arising from this cause are in the category of those for which a claimant may easily secure private insurance and are outside the scope of reasonable government responsibility.
COMPUTATION OF AWARD Each year the Judge Advocate General receives a number of appeals of personnel claims which are concerned with the method of computation used to arrive at the award made on particular items. Any discussion of such method must necessarily include mention of a general concept which runs through the entire Navy Personnel Claims Regulations and which has been previously mentioned. This concept is that possession of the property for which claim is made must be reasonable, useful, or proper under the circumstances. The concept is applied to both the quantities and the values of personal property which may be the subject of a claim.
Since portions of the Navy Personnel Claims Regulations in the area of computation of awards are now in the process of being revised, it would seem worthwhile to examine the concepts which will be embodied in the new provisions. Under these provisions, the first question to be examined is whether the item for which claim is made is economically repairable, or whether such item must be considered to be a total loss.52 The test to be used in making this determination is described in section 2106a of the Navy Personnel Claims Regulations and is 49. Ibid. 50. JAG Itr 144.1:kmo of 27 Nov 1963. 51. Supra, note 12. 52. JAG Itr 144.2:bhs of 12 Mar 1965.
stated as follows:
If the cost of repairs is less than the depreciated value of the property, then it is economically repairable, and the cost of repairs is the amount payable.
If application of the above test results in a finding that the item is not economically repairable, then the amount payable will be the depreciated value of the item immediately before it was damaged or lost, less any salvage value. 53 Such depreciated value will be determined from evidence submitted as to the depreciated replacement cost of the item.54 In no event will the amount awarded on any item exceed the depreciated replacement cost of the item at the time of loss.55 Normally, it will be assumed that the replacement cost of an item is equivalent to either the price paid in cash or property for the item; or, if such item was not acquired by purchase or exchange, the value of the item at the time of acquisition.56 However, under section 2106 of the Navy Personnel Claims Regulations, as revised, claimant is afforded an opportunity to prove that the current replacement cost of the item in fact exceeds the original cost or value thereof.57 The specific manner in which such proof can be established is set out in section 2117a (5) of the Navy Personnel Claims Regulations. This provision should be consulted for a complete discussion of the applicable rules.
Once the cost basis of property has been determined in accordance with the method discussed above, this basis must be adjusted by an appropriate deduction for depreciation. In an attempt to achieve some degree of uniformity among adjudicating authorities of all the armed services, uniform schedules of depreciation have been promulgated in accordance with section 2106b of the Navy Personnel Claims Regulations. These schedules need not be strictly adhered to, but are used as general guidelines in determining appropriate depreciation deductions. Additionally, such schedules are revised from time to time by a Joint Services Committee so as to achieve the maximum degree of accuracy and fairness in the depreciation percentages employed therein.
Any discussion of depreciation deductions would be incomplete without observing that it is not necessarily the purpose of the Navy Personnel Claims Regulations to compensate claimants in an amount which will restore their damaged or lost property to the exact same con
53. Ibid. 54. Ibid. 55. Ibid. 56. Ibid. 57. Ibid.
dition it was allegedly in prior to its damage or loss. On the contrary, it is realized that military life entails certain risks, one of which is the possible damage to or loss of personal property in shipment between duty stations or from other causes. Therefore, an attempt is made to apply the uniform depreciation schedules with a view towards fairness but also with a view towards practicality. It is intended by these schedules to compensate claimant in such a way that he may be able to replace his property with items that are equivalent, but not necessarily exact, replacements for those lost.
In using the uniform depreciation tables, it is sometimes necessary to apply certain rules of thumb where the claim form does not contain complete information. For instance, where claimant has neglected to specify the exact month of purchase of a claimed item, the normal procedure is to include the entire first year of ownership in any deduction made for depreciation. As to the last year of ownership, the general rule is as follows: if, depending upon the date of loss, claimant has had the use of the item claimed for a period less than 6 months, then no depreciation is taken on the item at all; however, if claimant has had the use of the item claimed for a period in excess of 6 months, then depreciation is taken for the entire last year of ownership. Use of these rules of thumb is a practical necessity in adjudicating the formidable volume of claims submitted each year to Marine Corps and Navy adjudicating authorities.
Where the property lost has been in storage for part or all of its period of use by the claimant, special rules will be applied. Normally, no depreciation will be taken on personal property for the period during which it was in storage. However, where such property is of the type that is subject to obsolescence or shelfwear, then depreciation will be taken at one half the normal rate for the period of time during which the property was in storage. Examples of property coming within the latter category are clothing, bedding, linens, and curtains.
It is realized, of course, that application of general depreciation percentages may result in a certain degree of hardship in particular cases. If such adjustments for depreciation were not made, however, the result would be that a claimant would have had the use of the particular items in question at no cost to himself for the benefits of such use. It is also realized that a claimant will frequently be benefited by the depreciation percentages applied to certain of his items. As to items which claimant asserts
should not be fully depreciated because of good condition or infrequent use, it can only be noted that depreciation schedules are not based solely upon these factors. The Navy Personnel Claims Regulations are intended to take into account the fact that many items lose their value steadily because of subsequent style changes, improved features of new models, and for other reasons in addition to the obvious ones. It should be remembered that awards made under the Navy Personnel Claims Regulations, and calculated under the uniform depreciation schedules, are not intended to take the place of privately purchased insurance where an individual desires maximum reimbursement for his losses.
In addition to deductions made for depreciation, claims submitted under the Navy Personnel Claims Regulations are also subject to maximum allowances which limit the amount of compensation which may be awarded for items coming within specified categories. Section 2106f authorizes the Chief of Naval Personnel and the Commandant of the Marine Corps "to promulgate guides for determining the maximum amount allowable for specific articles, and for establishing maximum quantities which will be allowed”. Such guides have been prepared and are used in conjunction with the uniform depreciation tables by the claims adjudicators of all the military services. Some of the items included in the maximum amounts allowable table are books, fine china, jewelry, paintings, silverware, and toys, although this list is by no means inclusive. For each category listed in the table, a dollar amount per item or per claim is specified for use by Navy and Marine Corps Claims Adjudicators as a guide in determining the maximum amount to be awarded. As with the depreciation tables, however, such maximums are to be used only as guides. Section 2106f specifically provides that, in applying such guides, claimant's standard of living, income, social obligations, family size, and general needs are to be considered in determining whether deviation from the maximum guides is justified.
In the great majority of cases, claimants who have a proper claim against the U.S. Navy under the provisions of the Navy Personnel Claims Regulations are also entitled to compensation from independent sources. Where at least partial responsibility for claimant's property has been assumed by a carrier or insurer of the
property, then claimant has a duty under section 2108b of the Navy Personnel Claims Regulations to make a demand on such carrier or insurer for reimbursement in accordance with the terms of the applicable bill of lading, con. tract, or insurance policy. Such demand must be made before a claim is submitted against the government under the Navy Personnel Claims Regulations.
In the case of a demand against a carrier, such demand must be made within 9 months from the date the property was delivered to claimant or within 9 months of the date that the property should ordinarily have been delivered to claimant. Where special circumstances are involved, the specific provisions of section 2108a should be consulted. In the case of a demand against an insurer, such demand should be made within the time limit set out in the insurance policy itself.
Section 2108c describes the sanctions to be invoked where claimant has failed to make the required demand upon a carrier or an insurer within the proper time limits. Where claimant has in fact failed to pursue his rights against the carrier or insurer, such inaction may result in a reduction of the amount otherwise recoverable from the government. The extent of this reduction will be equal to the maximum amount which would have been recoverable from the carrier or insurer had claimant timely pursued his rights against them. However, no reduction will be made where it is established that claimant's military service prevented his taking timely action against the carrier or insurer. Also, no reduction will be made where it appears that any action by claimant against the carrier or insurer would have been "impracticable" or "unavailing".
Once claimant has satisfied his obligation to make a demand against the carrier or insurer, he may immediately assert a claim against the government for reimbursement of his losses. Under authority of section 2109 of the Navy Personnel Claims Regulations, the claim against the government may be submitted concurrently with the claim against the carrier or insurer. If this procedure is followed, claimant will be assisted in the processing of his claim against the carrier or insurer by the Navy Claims Investigating Officer, who will thereafter monitor such claim to its final settlement. By signing the government claim form a claimant thereby agrees, in accordance with the language on the face of such form, to assign to the United States all right, title, and interest in any claim for the same property that claimant has
against third parties. The government thereby becomes subrogated to claimant's rights against carriers, insurers, or other parties to the extent of payments made to claimant by the government. However, the government will not necessarily require a claimant to turn over the entire amount of proceeds received from such third parties. The provisions under which the proportion of reimbursement to the government will be calculated are contained in section 2113 of the Navy Personnel Claims Regulations. Although this section is in the process of revision and is, in its present form, less than lucid, an attempt will nevertheless be made to spell out its current interpretation by the Judge Advocate General.
The detailed provisions of section 2113 are intended to prescribe the extent of reimbursement which will be required by the government where claimant has already been paid on his claim against the government but subsequently receives compensation for his loss from a third party. It is the intent of section 2113 to give claimant the maximum benefit of his independent recoveries. Since the case most frequently encountered involves a claimant who has recovered from the private insurer of his personal property, the provisions of section 2113 will be discussed from that point of view. It must be kept in mind, however, that such provisions are also applicable to recoveries from carriers and other parties in addition to insurers.
Under section 2113 of the Navy Personnel Claims Regulations, claimant's recovery from a third party is applied, first of all, to those items of his claim upon which he cannot recover under the Navy Personnel Claims Regulations.50 The balance of the third party recovery is then applied to all other items of the claim.60 It is this balance for which the government will demand reimbursement from claimant to the extent of payments already made to him by the government. In the case where claimant's initial recovery is from a private insurer, the theory of asking claimant to reimburse the government only for those amounts constituting clear duplication of payment is based upon the idea that claimant should be given whatever special benefits of his private insurance he intended to obtain by the purchase thereof.61 It must be assumed that claimant buys such private insurance for the purpose of protecting himself against the possibility that some of his items may be disallowed upon ad58. NAVEXOS-2662A; JAG Manual, sec. 2112. 59. JAG Itr 144.1:kmo ser 3068 of 18 May 1964.
60. Ibid. 61. Ibid.
judication by the government for the reason that they were not shipped in accordance with regulations or for the reason that claimant possessed quantities of particular items in excess of the maximum amounts allowable under the Navy Personnel Claims Regulations. Additionally, it would appear reasonable to assume that the claimant wants to obtain the special benefits of whatever lower depreciation rates may have been used by his private insurer in the initial adjudication of his claim. In interpreting the provisions of section 2113 of the Navy Personnel Claims Regulations, it has been the intent of the Judge Advocate General to give claimant the maximum number of the above types of benefits which he has attempted to purchase for himself.
Under the reimbursement policy of section 2113 of the Navy Personnel Claims Regulations as presently interpreted a claimant is not required to reimburse the government for third party recoveries on any of the items in the below three categories:
1. Items totally disallowed in the government adjudication due to possession or shipment contrary to regulations. 2. Items partially disallowed in the government adjudication due to application of the maximum amount allowable tables. 3. Items partially disallowed in the government adjudication due to application of higher depreciation rates than those used by the private insurer, carrier,
or other third party. Once the total amount paid by the third party on these items is determined in the above manner, such figure may be used for the purpose of determining the extent to which the government should demand reimbursement from the claim. ant. Under the formula described above, claimant will then be asked to reimburse the government in an amount equal to the recoveries received from third parties, less the amounts paid by such third parties over and above those paid by the government on any items.62
A prerequisite that must be met before any of the above-described adjustments in government reimbursement will be made is that claimant must furnish the Judge Advocate General with a copy of the third party's itemized adjudication, showing in detail the exact amount allowed by the third party on each and every item of the claim.63 In event the third party refuses to furnish such itemized adjudication papers to the claimant for review by the Judge Advocate General, any adjustment in reimbursement must necessarily be at the sole discretion of the 62. Ibid. 63. JAG Itr 144.1:kmo ser 6198 of 20 Oct 1964.
Judge Advocate General. Under these circumstances, the usual result is that a claimant may be given credit only for those items which were totally disallowed by the government because of shipment contrary to regulations or possession of quantities or values in excess of regulation maximums.64 Claimant will not, however, be given the benefit of any allegedly favorable depreciation rates used by the third party.
In a case where claimant's recovery is from a private insurer, based upon an insurance policy purchased by claimant, it should be noted that the adjustment in government reimbursement discussed above results in benefit not only to the claimant but to the government as well. Even though claimant is given the benefit of his private insurer's total coverage provisions and favorable depreciation rates, the government is still in a better position than if the claimant had purchased no private insurance whatsoever. Thus, it is believed that the reimbursement policy followed by the Judge Advocate General under section 2113 of the Navy Personnel Claims Regulations operates to the mutual benefit of claimant, third parties, and the government.
CONCLUSION As was stated in the beginning of this article, it has not been the purpose herein to discuss in detail each and every provision of the Military Personnel Claims Act as implemented by the Navy Personnel Claims Regulations. Rather, it is hoped that this article has served to clarify in meaning only those provisions of special interest, frequent application, or uncertain interpretation. Additionally, it is hoped that this discussion will have been of assistance to the Claims Investigating Officer in understanding the manner in which the Navy Personnel Claims Regulations are being administered by the Judge Advocate General and the important part which the Claims Investigating Officer must play in such administration. As for the prospective claimant, it is believed that dissemination to him of the information contained herein should make him better aware of his rights and duties under the Navy Personnel Claims Regulations and should give him a better idea of whether an appeal under such regulations would be well-advised under the circumstances of his particular case.
Since it has not been the purpose of this article to be all-encompassing, it is strongly recommended that both Claims Investigating Officers and prospective claimants consult the Navy Personnel Claims Regulations for a