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AASKOV v. ALDRIDGE

August 22, 1988

KAJ AASKOV, et al., Plaintiffs,
v.
EDWARD C. ALDRIDGE, JR., et al., Defendants



The opinion of the court was delivered by: OBERDORFER

 LOUIS F. OBERDORFER, UNITED STATES DISTRICT JUDGE

 165 Danish citizens and one American citizen filed claims with the U.S. Air Force on January 19, 1988, seeking damages from injuries stemming from the January 21, 1968 crash near Thule, Greenland, of a U.S. Air Force Strategic Air Command B-52 bomber carrying four 1.1 megaton hydrogen bombs. Plaintiffs sought consideration by a foreign claims commission pursuant to the Foreign Claims Act, 10 U.S.C. § 2734 (1982), but on January 27, 1988, the Air Force forwarded these claims to the Danish government pursuant to the NATO Status of Forces Agreement ("SOFA") and the International Agreement Claims Act, 10 U.S.C. §§ 2734a, 2734b (1982).

 I.

 NATO SOFA, a multilateral treaty to which both the United States and Denmark are parties, is designed "to define the status of [forces of one party] while in the territory of another Party." Agreement Between the Parties to the North Atlantic Treaty Regarding the Status of Their Forces, 4 U.S.T. 1792, 1794 (June 19, 1951) (hereinafter "NATO SOFA"). Article VIII, para. 5, deals specifically with torts "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." Under Article VIII, para. 5, claims are to be settled or adjudicated by the "receiving" state (the state in which the tort occurred) according to the laws and regulations that the state applies to the activities of its own armed forces. See NATO SOFA, 4 U.S.T. at 1806. When liability has been established or a settlement made, the "sending" state (the state whose forces committed the tort) then reimburses the receiving state for 75% of the damages pursuant to Article VIII, para. 5(e). See id.2

 The Foreign Claims Act, 10 U.S.C. § 2734, provides, in pertinent part, that

 
(a) To promote and 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 . . . to settle and pay in an amount not more than $ 100,000, a claim against the United States for --
 
. . . .
 
(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 . . . 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. . . .

 Defendants argue, correctly, that the NATO SOFA, not the Foreign Claims Act, governs all claims involving (1) official duties of the U.S. military (2) causing damage in NATO countries. Looking first to the plain language of the treaty, Article VIII, para. 5 of the SOFA uses very broad terminology. The provision applies to all cases, other than those involving contractual obligations, tortious acts or omissions not done in the performance of official duty, or unauthorized use of a vehicle, "arising out of acts or omissions of members of a force or civilian component done in the performance of official duty . . . causing damage in the territory of the receiving State to third parties."

 Although plaintiffs argue that SOFA only applies where either the force at issue is stationed in a NATO country other than its native country or the tort at issue occurred while the force was engaged in a NATO-related mission, neither of these limitations appear on the face of the treaty. Indeed, the treaty defines the receiving state as the state in which the force "is located, whether it be stationed there or passing in transit." NATO SOFA, art. I, para. 1(e), 4 U.S.T. at 1794 (emphasis added). Nor is any NATO connection essential to the applicability of the treaty. The negotiating history shows quite clearly that the drafters considered and then expressly rejected a proposal to limit the scope of the treaty to members of armed services "in connexion with the operation of the North Atlantic Treaty." NATO Agreements on Status: Travaux Preparatoires 163 (J. Snee ed. 1966). Rather, the drafters agreed on a simple geographical, not a purposive, test for applicability of the treaty by defining a "force" as members of the armed services "when in the territory of another Contracting Party in the North Atlantic Treaty area in connexion with their official duties." Id. at 164; NATO SOFA, art. I, para. 1(a), 4 U.S.T. at 1794. While pursuing these official duties, "Article VIII contemplates specifically and pervasively that the 'forces' it governs will normally be under, part of, and identified with their respective contracting Governments, not with some merged 'NATO command.'" Shafter v. United States, 273 F. Supp. 152, 159 (S.D.N.Y. 1967), aff'd, 400 F.2d 584 (2d Cir. 1968) (per curiam), cert. denied, 393 U.S. 1086, 21 L. Ed. 2d 779, 89 S. Ct. 871 (1969).

 Plaintiffs suggest in their Memorandum in Opposition to the Defendant's Motion to Dismiss that the United States has never forwarded any claims under the International Agreement Claims Act or NATO SOFA that did not involve forces either stationed in a NATO country other than the United States or involved in a NATO-related mission. This factual information, however, is unsurprising and irrelevant. The number of torts committed in other NATO nations by U.S. troops stationed in the U.S. and not participating in NATO-related missions is bound to be ...


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