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Exchange of Notes between Canada and the United Nations concerning Third Party Claims arising out of acts committed by Members of the Canadian Contingent with UNFICYP [1970] CATSer 5 (25 March 1970)

E103512 - CTS 1970 No. 9

EXCHANGE OF NOTES BETWEEN CANADA AND THE UNITED NATIONS CON­CERNING THIRD PARTY CLAIMS ARISING OUT OF ACTS COMMITTED BY MEMBERS OF THE CANADIAN CONTINGENT WITH UNFICYP

I

The Secretary-General of the United Nations to the Permanent Representative of Canada

25 March 1970

His Excellency Mr. Yvon Beaulne
Ambassador Extraordinary and Plenipotentiary
Permanent Representative of Canada to the United Nations
New York

Sir,

I have the honour to refer to the exchange of letters dated 21 February 1966 between the United Nations and the Government of Canada constituting an agreement concerning the participation of a Canadian contingent in UNFICYP and in particular to paragraph 12(b), providing for the conclusion of Supplementary Agreements relating to the settlement of claims arising out of acts committed by members of the contingent within or outside the scope of their official functions.

I am pleased to inform Your Excellency that the United Nations is prepared to conclude an Agreement with respect to this matter as follows:

Principles

1. (a) The Government of Canada shall reimburse the United Nations for all expenses incurred by the United Nations in meeting claims by third parties settled in accordance with the procedures outlined below and which are in respect of tortious acts of members of the Canadian contingent when such acts occur on duty periods either in the course of the performance of their official functions or outside the course thereof, or during off duty periods.

(b) Notwithstanding the provisions of sub-paragraph (a), the Govern­ment's responsibility for reimbursement shall not extend to claims:

(i) arising directly out of specific operational orders of the UNFICYP Commander; or

(ii) involving members of the Canadian contingent assigned to United Nations Forces Headquarters except that the Government will, pursuant to the undertaking given under Paragraph 12(a) of the agreement of February 21, 1966, use its best efforts to secure the settlement of claims against the said members arising out of tortious acts committed outside the scope of their official functions or during off duty periods.

2. Nothing in this supplementary agreement is intended to imply in any way:

(a) the liability of the Canadian Government regarding claims for damages resulting from acts undertaken by members of its contingent except for the responsibility to reimburse the United Nations in respect of those claims described in Article 1;

(b) the liability of the United Nations regarding claims for damages for acts undertaken by members of UNFICYP as a result of operational necessity.

3. The Government of Canada shall reimburse the United Nations for expenses or such agreed portions thereof, incurred by the United Nations in meeting claims in respect of damage (ordinary wear and tear excepted) arising out of occupation by members of the Canadian contingent of property pro­vided by the Government of Cyprus under Article 19 of the Status of Forces Agreement of March 31, 1964. In the event that the damage giving rise to the claim occurred while the premises were occupied jointly by members of the Canadian contingent and members of one or more other contingents of UNFICYP, and the responsibility for causing such damage cannot be deter­mined as amongst those contingents, the liability of the Government of Canada to reimburse the United Nations under this paragraph shall be limited to that proportion of the total amount of the damage that the number of members of the Canadian contingent bears to the total number of members of UNFICYP occupying the premises with regard being had also to the length of occupancy of the various contingents. The responsibility of the Government of Canada set out in this paragraph does not extend to claims against the Canadian contingent arising out of operational orders of the United Nations Commander or to claims against Canadian personnel assigned to the United Nations Force Headquarters in Nicosia.

4. (a) Although payment thereof shall be subject to the availability of funds in the UNFICYP Special Account, the United Nations shall reimburse the Government of Canada for all indemnities paid and expenses incurred by the Government of Canada, based on its national laws and regulations, as a result of the death or injury of a member of the Canadian contingent of UNFICYP, whether he is serving with his contingent or assigned to the United Nations Forces Headquarters, where such death or injury was caused by tortious acts or omission of -

(i) a member of another participating contingent

(ii) a person (other than a member of the Canadian contingent) assigned to the United Nations Forces Headquarters, or

(iii) a third party.

(b) The United Nations shall not be liable to reimburse the Government of Canada with respect of deaths of or injuries to members of the Canadian contingent caused as a direct result of specific operational orders of the UNFICYP Commander.

Procedures

5. Upon receipt of claims against members of the Canadian contingent, UNFICYP Claims Office shall investigate the facts relating thereto with the co-operation of the Commander of the Canadian contingent. The UNFICYP Claims Office shall consider the claim and assess the compensation to be paid to the claimant and shall submit all data and recommendations thereon regard­ing liability and amount of compensation to the Commander of the Canadian contingent. The UNFICYP Claims Office and the Commander of the Canadian contingent shall then agree on whether the claimant is entitled to payment and the quantum of compensation. Where the agreed sum of compensation does not exceed £500 Sterling, UNFICYP, after obtaining a general release from the claimant, shall make the necessary payment and debit the Government of Canada. Where the agreed sum of compensation exceeds £500 Sterling, the relevant file and information shall be forwarded to the United Nations Headquarters, New York, for consultation between the United Nations and the Canadian Mission to the United Nations on questions of liability and final settlement.

6. At the request of either party, whenever necessary, the United Nations and the Canadian Mission to the United Nations shall hold consultations on questions of the allocation of responsibility for claims as between the United Nations and the Government of Canada and the implementation of the principles and procedures set forth in this agreement.

7. This letter together with your reply accepting the proposal set forth herein shall constitute an agreement between the United Nations and Canada and shall be deemed to have taken effect from the date the contingent provided by your government arrived in Cyprus to assume duties with the United Nations.

8. All disputes between the United Nations and the Government of Canada concerning the interpretation or application of this supplementary agreement shall be settled in accordance with the terms of paragraph 15 of the Agreement of February 21, 1966.

If these provisions are acceptable to your Government, I have the honour to propose that this letter and Your Excellency's reply, done in duplicate in English and French, shall constitute an agreement between the United Nations and Canada, which shall enter into effect on the date of my receipt of your reply.

Accept, Sir, the assurances of my highest consideration.

U Thant

Secretary-General

II

The Permanent Representative of Canada to the Secretary-General of the United Nations

25 March 1970

His Excellency U Thant,
Secretary-General of the United Nations,
New York

Sir,

I have the honour to acknowledge receipt of your letter of 25 March 1970, proposing a supplementary agreement between the United Nations and the Government of Canada relating to the settlement of claims arising out of acts committed by the members of the Canadian contingent with the United Nations Force in Cyprus within or outside the scope of their official functions.

I have the honour to inform you that the proposal contained in your letter is acceptable to the Government of Canada, and further, to confirm that your letter and this reply, done in duplicate in English and French, shall constitute an agreement between the United Nations and the Government of Canada on this matter, effective this date.

Accept, Sir, the assurance of my highest consideration,

Yvon Beaulne

Ambassador and Permanent Representative