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SHAFTER v. UNITED STATES

July 26, 1967

Alfred M. SHAFTER, as next friend of the dependents and next of kin of Joaquin Farina Muniz, and for such other persons as may be similarly situated, such as dependents and next of kin of Georg Joseph Kostka, Gerhart Rudi Richard Klatt, Dieter Ahrens, Koch Lothar Ludwig Wilmes and Gunter Schikulla, and Karl-Heinz Weinhold, Plaintiffs,
v.
UNITED STATES of America, Defendant and Third-Party Plaintiff, v. Alfred M. SHAFTER, as next friend of the dependents and next of kin of Georg Joseph Kostka, Dr. Horst Willner, as Administrator of the Estate of Georg Kostka, Deceased, the owner of the GERMAN MOTORSHIP DIRK, Albingia Versicherungs-Aktiengesellschaft, and the British Marine Mutual Insurance Association Ltd., Third-Party Defendants


Frankel, District Judge.


The opinion of the court was delivered by: FRANKEL

FRANKEL, District Judge.

On February 10, 1964, an American Government vessel, the USNS BLUE JACKET, collided with a fishing boat, the M/V DIRK, on the Weser River in the territorial waters of the Federal Republic of Germany. Six members of the DIRK'S seven-man crew were killed; the seventh survived, but suffered physical injuries. In this lawsuit, brought on November 16, 1965, by the surviving crew member and a representative of those whose lives were lost, recovery is sought from the United States under the Public Vessels Act, 46 U.S.C. ยง 781 et seq. for the pain, suffering, and other damages attendant upon the deaths and personal injuries. *fn1" The Government has moved for summary judgment dismissing the suit, asserting that the matter has been withdrawn from the court's subject-matter jurisdiction by the provisions of the North Atlantic Treaty Status of Forces Agreement ("NATOSOFA") of June 19, 1951, 4 U.S.T. 1792, to which the Federal Republic of Germany acceded by a Supplementary Agreement of August 3, 1959, effective July 1, 1963, 14 U.S.T. 531. Those treaty arrangements, the Government contends, create a comprehensive and exclusive scheme for adjudication and settlement of claims within their purview. The argument appears to be clearly correct. The only question initially creating some doubt as to whether the motion should be granted is whether the BLUE JACKET, at the time of the disaster, was part of a "force" governed by the provisions of NATO-SOFA.

 I.

 Article VIII, paragraph 5 of NATO-SOFA provides in pertinent part (4 U.S.T. at 1806-08):

 
"Claims * * * arising out of acts or omissions of members of a force or civilian component done in the performance of official duty, or out of any other act, omission or occurrence for which a force or civilian component is legally responsible, and causing damage in the territory of the receiving State to third parties, * * * shall be dealt with by the receiving State in accordance with the following provisions: - *fn2"
 
"(a) Claims shall be filed, considered and settled or adjudicated in accordance with the laws and regulations of the receiving State with respect to claims arising from the activities of its own armed forces.
 
"(b) The receiving State may settle any such claims, and payment of the amount agreed upon or determined by adjudication shall be made by the receiving State in its currency.
 
"(c) Such payment whether made pursuant to a settlement or to adjudication of the case by a competent tribunal of the receiving State, or the final adjudication by such a tribunal denying payment, shall be binding and conclusive upon the Contracting Parties.
 
"(d) Every claim paid by the receiving State shall be communicated to the sending States concerned together with full particulars and a proposed distribution in conformity with sub-paragraphs (e) (i), (ii) and (iii) below. In default of a reply within two months, the proposed distribution shall be regarded as accepted.
 
"(e) The cost incurred in satisfying claims pursuant to the preceding subparagraphs and paragraph 2 of this Article shall be distributed between the Contracting Parties, as follows: -
 
"(i) Where one sending State alone is responsible, the amount awarded or adjudged shall be distributed in the proportion of 25 per cent. chargeable to the receiving State and 75 per cent. chargeable to the sending State.
 
"(ii) Where more than one State is responsible for the damage, the amount awarded or adjudged shall be distributed equally among them; however, if the receiving State is not one of the States responsible, its contribution shall be half that of each of the sending States.
 
"(iii) Where the damage was caused by the armed services of the Contracting Parties and it is not possible to attribute it specifically to one or more of those armed services, the amount awarded or adjudged shall be distributed equally among the Contracting Parties concerned: however, if the receiving State is not one of the States by whose armed services the damage was caused, its contribution shall be half that of each of the sending States concerned.
 
"(iv) Every half-year, a statement of the sums paid by the receiving State in the course of the half-yearly period in respect of every case regarding which the proposed distribution on a percentage basis has been accepted, shall be sent to the sending States concerned, together with a request for reimbursement. Such reimbursement ...

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