File #718: "WWII Office of Civilian Defense Civil Air Patrol GM-130.pdf"

WWII Office of Civilian Defense Civil Air Patrol GM-130.pdf

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N AT I 0 1 C ~ L ~ U A RT B R S
C I V I L A ~ ~ AT R O L "
500 FF~T,~! AVENUE
I~IErT YORK 18, NEW YC~
GM-IS0
i July 19Z%
S U B J E C T: D i s c u s s i o n o f L i a b i l i t y i n c o n n e c t i o n w i t h O p e r a t i o n o f A r m y a i r c r a f t .
TO:

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i. Due to various questions ~:lhich halve arisen as to the liability of CAP
p e r s o n n e l i n c o n n e c t i o n ' ~ Ti t h t h e o p e r a t i o n o f A r m y a i r c r a f t a s s i g n e d f o r r e c r u i t ~
ing purpodes an opinion has been secured which, it is believed, indicates rather
conclusively 'that the possibilities of a claim belng established against an individual CAP member are very slim, unless such member en~ages in reckless and wanton conduct which is in direct and complete vielatlon Bf the rules an~ rsgulatinns
r u d e r w h i c h t h e p l a n e s w i l l b e o p e r a . t e d . S p e c i fi c a l l y, t h e A i r J u d g e A d v o c a t e
has sald~
, a. "Generally speakin~ CAP ncrsom~sl (including CA~/pilots, operatimns
officers, ~aintanance personnel and othars) are civilly liabl~ f~- their wrong
ful or tortious acts which ~ause personnel injury or preperty~damage, Govern.
ment control or direction would not protect such personnel from the legal consequences of their 0~m misconduct. A definite opinion of general application cover~
ing the legal liability of the several c~2sses of personnel speclflsd, in all
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cases, cannot be glven, for in each case liability is primarily dependent upon "th~
the circumstances giving rise to the claim, and th@ applicaole laws of the state
in which the accident occt~rred."
2. The A~r Judge Advocate has f~L~ther said that ~he Government would not
hold a CAP member liable for loss or damage to tha planes themselves even where
simple negligence on the partlof such member was involved. Speciflcall~, the
Air Judge Advocate has said:
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a . " U n d e r C A P o p e r a t i o n s ' s d i r e c t i v e O#~ D e e 4 3 ~ a C A P W i n g C o m m a n , i
der is a gratuitous bailee-of Government airdraft for the b~n~fit of the bailer
and as suchwould be expected to exercise only reasonable care for the property
bailed to him.
I t n o r m a l l y w o u l d h a t h e p o l i c y o f t h e Wa r D o p m r t m e n t n o t t o
assert any claim for loss, damage, or destruction of Government airplanes bailed
to CAP pdrsonncl under the circumstances provided in CAP Operation'~ Directive
#40 unless mere than simple negligence wore involved. (The Office of The Judge
Advocate GeDeral, Lt. Col Roy A. Deal, informally has concurred)

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b. "The liability of a CAP ooorations officer would be no greater than
t h a t o f a W i n g C o m m a n d e r.
e. "The liability of a CAP pilot would be no greater than that of a
Wing Commander. ',
3. The Air Judge Advocate has "~oimted out that the proposition of law ~'Jhieh
has been states with regard to the liability of CAP personnel is generally apuli- '
cable to military personnel and Government employees, but thr% in spite of such
fact liability claims are rarely if ever assertad age~nst Army personnel. Furthe.
m o r e , A r m y p e r s o n n e l d o n o t c ~ r r y i n s u r a n c e a g a i n s t s u c h l i a b i l i t y. S p e c i fi c a l l y
the Air Judge Advocate has s,~.Id:

a. "Army pilots, oponations~ officers, and Coz,nanding Officur~ arc no'~
entitled to Govorr~nen~ immunity for their nrongfu2 or tortuous acts while ~ngaged in non-combat activities.
b. "Such ~liability claims .~re not frequently asserted against military
p e r s o n n e l . ~ . ~ , : I m . M . R ¢ , . d i n g o f t h i s o f fi c e h a s b e e n a n e m p l o y e e o f t h e ~ Ta ~
D e p a r t m e n t f o r m e r e t h a n 2 5 y e a r s ( d u r. - ' ~ g ~ a c t i c a l l y a l l o f w h i c h p e r i o d h o p r o cessed aircraft claims), and he has stated that there has r~vor come to his attention any instance in which such liability ~as asserted against military personnel. Insurance is no~ carried."
, .,~ \
~. It should bo noted that liability 3uits/will normally be defended.by the
U,S. Attorney Goneral. The Air Judge Advocate C~neral has .saSd|
a "Under normal circumstances suits of this nat~:.ic\~iould bo defended
by the United States Attornay \~onenal upon approprlate ~o~. (The ~ffics of
T h e U n i t e d S t a t e s A t t o r n e y C ~ n 0 r a l , r ~ r. C ~ u r g a F o l e y ~ i n f o _ ' n a l l y, h a s e o n c o r r o d
i~ this statement)"
5. Third parties who'are lusted- or have suffered proper~y d.amage as are-.
cult of the operation of ths Army ~ircraft nay present claims against the" Govern~
mont for such inJt~ry or damage. This fact would of course limit the possibiliti6~
o f s u c h p a r t i e s ~ i s o a s s o r t i n g a c l a i m a g a i n s t a n y O A P n o m b 6 r. T h e A i r J u d g e A d - .
vocate has s~id:
a . " A t t e n t i o n i s i n v i t e d t 9 P u b l i c L a w 11 2 , 7 8 t h C o ~ g r o s s , a n d A R 2 5 - 2 ~
under which the Government has assumed l~abilxty to any one claimant up to
~i,000.00 ($500.00 in peace time) "for certain danago incident to non-combat act i v i t i n ~ o f t h e W a r D e p a r t m e n t o r t h e A r m y.
b. "Regulations proscribin~ the investigation and settlement of such
claims are contained in AR 25-20 and AR 25-25. Claims aris~ug from the operation
of the airplanes in reference by CAP personnel would fall within the terms of th9
Act cited and nay be settled under the provisions of the regulations named.
e. "The fact that the claimant might have certain rights against the
Government should tend to limit the number of, suits brought against CAP personnel
~ndividualiy because of the liharal and expeditions processing of Governmon~
claims, the solvency of the Government, and the psychological handicap necessari]~
attendant upon the prosecution of a volunteer engaged in an activity for the ~ar
effort."
6. Several ~ing Conaanders have in the past indicated that it was their
gosling that liability insurance whoUld be secured to prot~:~t GAP personnel
against claims arising out of the operation of CAP aircraft. Such Wing Com~ndor~
and Others who may be concerned with the possibility of ~t ch suits must determine
for themselves the advisability of sect,ring such insurance in the light of the
opinions of tha Air Judge Advocate quoted above. The cost of such insurance must
be weighed against:
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a. The possibility of injury or loss boim~ caused to third parties
through the operation of tbe Army planes.
b . T h e f a c t t h a t m i l i t a r y o o r ~ o n u e l a n d G o v e r n m e n t e m p l o y e e s. w h o a r e a l
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so ~enorally liable for their wrongful or tortuous acts do not carry insurance
a n d y e t c l a i m s a r e r a r e l y i f o v e r fi l o ~ a g a i n s t t h e m p e r s o n a l l y.

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c~ The fact that suits fil~ aUuinst OAP personnel would normally be
.!c~Cended by the Attorney Gnmaral,
d. The fact that a~J InJ~h- -~e~#en might quits likely choose to file
a claim against the Governmort rathsr th~n to undertake a la~J suit.
V. S u c h i n ~ r a n . t b e ~ o c u ~ o d a t p r e s e n t t h r o u g h N a t i o n a l H e a d q u a r t e r s
but Can be obtaJmod by Uing Commanders d~:r~ctly from the Insurance Underwriters.
Premiums must be paid from p~i,~mte fands ~ince Government funds are not presently
a v a i l a b l e t h e r e f o r. N a t i o n a l N o a d q u a r t e r ~ i s a t t e m p t i n g t o w o r k o u t a n a r r a n g e mcnt vhereby the cost of such insurance ma2, b~pald by the Government but such arrangements do not presently appear foasibl~-~an~°perati°ns, therefore ~lill be cond u c t e d w i t h o u t r e g a r d t o s u c h p o s s L h i l i t y. ' ~
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N,tiotl co ndo, JONSON.
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~ j o r, A i r C o r p s
Insurance Officer

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