Commentary on Sections Section 25: Claims against visiting forces: transfer of liability
103.The NATO Status of Forces Agreement (an agreement between the parties to the North Atlantic Treaty regarding the status of their forces signed in London on 19 June 1951, referred to below as “the Agreement”) is an agreement between NATO member states governing the status of the armed forces of one NATO state (‘sending state’) while in the territory of another (‘receiving state’).
104.Article VIII(5) of the Agreement concerns the handling of claims arising from the activities of the armed forces of a sending state while they are in the territory of the receiving state.
105.The Article requires claims in tort arising out of certain acts or omissions of members of a visiting force or of the civilian component of such a force to be dealt with by the receiving state. These are acts done in the performance of official duty and anything else for which a visiting force or civilian component is legally responsible which causes damage in the territory of the receiving state to anyone but the receiving state itself.
106.Under the Article claims must 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.
107.The Article also provides for the amount of the costs incurred and any award to be shared by the sending state and the receiving state in specified proportions. For example, where one sending state is responsible, the amount is to be borne as to 75% by the sending state and as to 25% by the receiving state.
108.Section 9 of the Visiting Forces Act 1952 provides for the Secretary of State to make arrangements to handle claims and to settle them but not to defend proceedings for a claim. This is different from the practice of other NATO member states. If the Secretary of State does not succeed in settling the claim and the matter is to be decided by the courts, the sending state has to act for itself. This is not necessarily easy for the sending state, which finds itself in unfamiliar proceedings.
109.To remedy this, the section provides for the insertion of a new section 9A into the Visiting Forces Act 1952. This enables the Secretary of State, if a sending state requests it, to transfer any liability in tort in respect of a relevant claim to the Ministry of Defence. He does this by a written declaration specifying the claim and the time from which any liability in tort is transferred. This will enable him to be substituted as a party in the proceedings in place of the sending state. It does not prevent the Secretary of State defending the claim. He will have only the same liability, and accordingly any defence, that the sending state would have had in the proceedings.