Brown v. MINISTRY OF DEFENSE OF UNITED KINGDOM

• Decision Date: 08 April 1988
• Docket Number: Civ. A. No. 87-382-N.
• Citation: 683 F. Supp. 1035
• Parties: Lisa M. BROWN, et al, Plaintiffs, v. MINISTRY OF DEFENSE OF the UNITED KINGDOM OF GREAT BRITAIN, United Kingdom of Great Britain, the United States of America, Defendants.
• Court: U.S. District Court — Eastern District of Virginia

683 F. Supp. 1035

Lisa M. BROWN, et al, Plaintiffs, v. MINISTRY OF DEFENSE OF the UNITED KINGDOM OF GREAT BRITAIN, United Kingdom of Great Britain, the United States of America, Defendants.

Civ. A. No. 87-382-N.

United States District Court, E.D. Virginia, Norfolk Division.

April 8, 1988.

Girard C. Larkin, Jr., Virginia Beach, Va., Steven G. Schwartz, Alexandria, Va., for plaintiffs.

Raymond A. Jackson, Norfolk, Va., Irving A. Pianin, U.S. Dept. of Justice, Torts Branch, Civ. Div., Washington, D.C., for defendants.

ORDER

DOUMAR, District Judge.

Plaintiffs, two civilians not employed by the Armed Forces, were injured while visiting the United Kingdom of Great Britain merchant ship R.F.A. OLNA while it was docked at the Norfolk Naval Base. The OLNA was in Norfolk as a component of a United Kingdom naval force which was participating in the NATO combined naval training operation known as "Ocean Safari." The plaintiffs brought this action, alleging tort actions in admiralty, against the United Kingdom of Great Britain (U.K.) and the Ministry of Defense for the U.K. On February 24, 1988, in open court, the court granted plaintiffs' motion for leave to amend their complaint to add the United States as a party defendant pursuant to Rule 15(a).

The defendants U.K. and Ministry of Defense for the U.K. have moved to dismiss pursuant to Rule 12(b)(6) and defendant United States has moved for dismissal pursuant to Rule 12(b)(1) and the Statute of Limitations, asserting this court lacks subject matter jurisdiction over the case against the United States and that this case is barred by the applicable statute of limitations.

For the reasons stated below, all defendants' motions to dismiss are GRANTED.

I. FACTS

On August 27, 1985 the plaintiffs visited the British Merchant Ship R.F.A. OLNA after being invited to do so by one of the OLNA's crewmen, a merchant seaman. At this time, the OLNA was docked at Pier 20, Norfolk Naval Base, Norfolk, Virginia, and was a component of a British naval force which was participating in a NATO exercise. After the visit, while the plaintiffs departed the vessel, the OLNA gangplank collapsed resulting in personal injuries to both plaintiffs. Plaintiffs allege their injuries were caused by defendants' "negligence and wrongdoing ... in their failure to properly secure the gangplank; in failing to maintain it in a proper and safe condition; and in their failure to make said gangplank safe for use in boarding and departing from the said vessel." Complaint, ¶ 7. The plaintiffs then filed this action on June 9, 1987 alleging tort action in admiralty.

II. DISCUSSION

1. The NATO-SOFA Scheme

For reasons fully set forth below, defendants argue that application of the NATO-SOFA will bar prosecution of this action. Plaintiffs counter that the treaty is not applicable and, alternatively, that application would not bar this action.

At all times material to this case, the United Kingdom of Great Britain and the United States were ratified signatories to the NATO-SOFA 4 U.S.T. 1792 (June 9, 1951). The "purpose of the SOFA is to define the legal status of the organs of the North Atlantic Treaty Organization and of the military forces of one NATO power stationed in the territory of another NATO power. The SOFA covers not only military forces but also their civilian components." Status of Forces of the North Atlantic Treaty: Supplementary Hearing Before the Comm. on Foreign Relations, 83d Cong., 1st Sess. 1 (1953) (statement of Sen. Alexander Wiley, Chairman, Senate Comm. on Foreign Relations). Significantly, the NATO-SOFA defines the legal status, under both civil and criminal laws, for hundreds of thousands of United States military personnel now serving in NATO countries. It is crucial that the court carefully construe this treaty in order to effectuate fully its intended purpose. To misconstrue or misapply the treaty could have far reaching effects insofar as misapplication could alter application of the NATO-SOFA to hundreds of thousands of American servicepeople in Europe and elsewhere.

The applicability and application of the NATO-SOFA in this case turns upon the claims provisions construction of Article VIII of the NATO-SOFA,¹ the relevant portions of which are set forth as follows:

5. 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 other than any of the Contracting Parties, shall be dealt with by the receiving State in accordance with the following provisions:—

(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 proposed distribution in conformity with sub-paragraphs (e)(i), (ii) and (iii) below....

....

Defendants assert that the OLNA was part of a "force" or "civilian component" thereof and that the claims provision of Article VIII therefore apply. As such, the defendant asserts that Article VIII, paragraph 5(a) exclusively limits plaintiffs' remedy to one against the United States Government, as though the plaintiffs had been injured on a United States military ship. Under this construction of paragraph 5(a), the OLNA is afforded the judicatory status of a United States warship. By this legal fiction, the plaintiffs' access to a remedy is simplified because the need to serve and sue a foreign country is obviated. In the present case, however, this construction will deny plaintiffs a remedy because they have not complied with the time requirements for bringing this action against the United States.

To the contrary, the plaintiffs urge the court to find that the OLNA was not part of a "force" and that the NATO-SOFA therefore does not apply to this case. In the alternative, plaintiffs argue that even if NATO-SOFA applies, the treaty does not expressly require suit to be brought against the "receiving state" and therefore plaintiffs are not required to sue the receiving State, here the United States, but are free to sue the sending State (U.K.) in a United States Court under United States law.

The court will consider each of plaintiffs' contentions in turn.

a. Applicability of NATO-SOFA.

The plaintiffs' argument that NATO-SOFA does not apply because the OLNA is not part of a "force" completely ignores the fact that the NATO-SOFA, by its clear terms, also applies to "civilian components." The NATO-SOFA defines a "civilian component" as "the civilian personnel accompanying a force of a Contracting Party who are in the employ of an armed service of that Contracting Party...." NATO-SOFA, Art. I, ¶ 1(b). Defendants have shown, by the uncontradicted affidavit of Michael Antony Holder, Assistant Secretary in the British Civil Service and Director of Supplies and Transport in the Ministry of Defense, that "RFA OLNA was, in August 1985, in company with HMS ILLUSTRIOUS and other British warships and RFA support vessels, preparing for their participation in the major North Atlantic Treaty Organisation exercise `Ocean Safari'. On August 27, 1985 RFA OLNA was under the operational control of a senior officer of the Royal Navy." Affidavit, ¶ 4. Moreover, the plaintiffs have admitted, by their complaint, that the OLNA was under the control of the U.K. Ministry of Defense. See Complaint, ¶ 2.

The court concludes that the OLNA's personnel were part of a "civilian component" and this alleged incident is within the perview and coverage of the NATO-SOFA which the court finds applicable to the instant case.

b. Application of NATO-SOFA.

Paragraph five, Article VIII of the NATO-SOFA has never been judicially construed with direct regard to the question whether a civil action against the United States is the exclusive remedy available under the agreement.

The focal point of the court's interpretation of the NATO-SOFA application to the instant case is paragraph 5(a) which states that "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."

The plain meaning of this provision, as applied to this case, is that suit must be brought under the "laws and regulations" of the United States which govern claims made against the United States itself for injuries resulting from United States armed forces activities. Paragraph 5(a) is not merely a conflict of laws provision. It does not say only that a civilian injured in the receiving State may sue in the receiving State under the law of the receiving State. Rather, the provision specifically provides further that such suit "shall" be brought under the receiving State's laws which govern claims arising from the activities of the receiving State's armed forces. Id.

The United States law which governs claims which arise in the United States from injuries sustained by third parties on United States military or support vessels is the Public Vessels Act (PVA), 46 U.S.C. App. §§ 781-790. United States v. United Continental Tuna Corp., 425 U.S. 164, 96 S.Ct. 1319, 47 L.Ed.2d 653 (1976); Petition of the United States, 367 F.2d 505 (3rd Cir.1966),...