MOTOR VEHICLES (THIRD PARTY
INSURANCE) (ECOWAS BROWN CARD)
LAW, 1986 (PNDCL 141)
ARRANGEMENT OF SECTIONS
Section
1. Articles to have Force of Law.
2. Act No.42 of 1958 Modified.
SCHEDULE
Schedule
WHEREAS a Protocol entitled
Protocol on the Establishment of
an Ecowas Brown Card Relating to
Motor Vehicle Third Party
Liability Insurance the fact of
which is set out in the Schedule
to this Law, and in this Law
referred to as "the Cotonou
Protocol" was signed on behalf of
the Government of Ghana in Cotonou
on the 29th day of May, 1982, and
ratified by the said Government on
the 2nd day of March, 1985;
AND WHEREAS the Cotonou Protocol
provided for the establishment of
a common system for the settlement
of claims arising in international
motor vehicle traffic in the
Economic Community of West African
States, and for the harmonization
between the member State parties
to the Cotonou Protocol of the
laws and regulations governing
liability to third parties in
respect of motor vehicle
accidents;
AND WHEREAS it is decided to give
effect to the Cotonou Protocol and
to provide, so far as necessary,
that its provisions shall have the
force of law in Ghana;
NOW, THEREFORE IN PURSUANCE of the
Provisional National Defence
Council (Establishment)
Proclamation, 1981, this Law is
hereby made:
Section 1—Articles to have Force
of Law.
Articles 1, 2, 3, 4, and 5 of the
Cotonou Protocol (relating to
Structure of the Ecowas Brown Card
Scheme, Participants in the
Scheme, Responsibility of
participants, the Ecowas Brown
Card and the National Bureau
respectively) shall have the force
of Law in Ghana.
Section 2—Act No.42 of 1958
Modified.
The Motor Vehicles (Third Party
Insurance) Act, 1958 (No. 42 of
1958) shall be construed with such
modifications as may be necessary
to give full effect to the
provisions of this Law.
SCHEDULE
PROTOCOL ON THE ESTABLISHMENT OF
AN ECOWAS BROWN CARD RELATING TO
MOTOR VEHICLE THIRD PARTY
LIABILITY INSURANCE
Preamble
THE GOVERNMENT OF MEMBER STATES OF
THE ECONOMIC COMMUNITY OF WEST
AFRICAN STATES:
NOTING the rapid increase in
international road traffic in
ECOWAS member States and the
problems raised by such traffic in
regard to motor vehicle liability
insurance;
CONSCIOUS of the need to
guarantee, for road accident
victims, fair and prompt
compensation for damage they may
have sustained as a result of such
accidents;
ANXIOUS to facilitate, for their
nationals driving their vehicles
within the Member States, payment
of compensation due from them as a
result of accidents they may have
caused and to enable them comply
with their obligations under local
law or regulations on the subject;
DESIROUS of encouraging the
development of trade and tourist
exchange between African counties;
CONVINCED that the establishment
of a common system for the
settlement of claims arising in
international motor vehicle
traffic will lead gradually to a
desirable harmonisation between
the parties to the present
protocol of the laws and
regulations governing liability in
respect of motor vehicle
accidents;
WISHING to offer their insurance
markets an opportunity and a means
to develop international links and
exchanges, which will inevitably
contribute to the extension of
these markets;
AWARE of the satisfactory results
obtained by the international
insurance card scheme which has
been in force for many years in
Europe, and of the institution of
a similar scheme by the Arab
countries;
DECIDE to establish, by this
Protocol, an ECOWAS BROWN CARD
covering motor vehicle liability
when the vehicle insured is
passing through the territories of
the parties to this Protocol such
cover providing at least the same
guarantees as those required by
the laws in force in territory of
each of the parties.
ARTICLE 1
STRUCTURE OF THE SCHEME
1. The Liability insurance scheme
established by this Protocol shall
have, as its legal, technical and
financial basis, the guarantees
which are afforded to motorists
proceeding to an ECOWAS Member
State by taking out an insurance
policy on the usual terms with an
insurer authorised to undertake
this type of business in the
country which is the point of
departure for the journey.
2. The scheme shall be based
materially on an ECOWAS BROWN CARD
whose form, as well as the
guarantees it affords, are defined
in the provisions of Article 4 of
this Protocol.
3. The ECOWAS BROWN CARD shall be
issued by a National Bureau
established by each party to this
Protocol in accordance with the
provisions of Article 5 of this
Protocol. The card shall be
issued to motorists through the
insurers with whom they have taken
out a liability insurance policy
valid when driving in their own
country.
4. Each National Bureau shall
settle, on behalf of its member
insurers, claims arising from
accidents caused abroad by holders
of the cards it has issued, and
shall also handle claims arising
from accidents caused in its
country by holders of cards issued
by the National Bureaux of other
parties to this Protocol. It may
also take over the settlement of
claims under cover of a joint
deposit, the ECOWAS BROWN CARD
constituting proof of this
deposit.
5. The legal, administrative and
financial operation of the scheme
established by this Protocol shall
be co-ordinated and supervised by
a council of Bureaux of which all
the National Bureaux of the
parties to this Protocol shall be
members in accordance with the
provisions of Article 6 of this
Protocol.
ARTICLE 2
PARTICIPANTS IN THE SCHEME
1. Parties to this Protocol shall
participate in the Scheme as
principal participants.
2. Insurers, irrespective of their
legal or financial structure,
which are authorised by the
competent authorities of their
countries of activity to undertake
insurance operations against
liability risks in respect of
motor vehicle accidents, shall
participate in the scheme as
subsidiary participants. The
participation of such insurers in
the present scheme shall be
subject to their membership in the
National Bureaux of their
countries of activity.
ARTICLE 3
RESPONSIBILITY OF THE PARTICIPANTS
1. The responsibilities of a party
to this Protocol shall be:
(a) To recognise the ECOWAS BROWN
CARD and to enact laws and
regulations for the establishment
of the card scheme, and
particularly for the creation of
its National Bureau;
(b) To ensure that its National
Bureau is established and
functions in accordance with the
provisions of this Agreement, and
that it joins the Council of
Bureaux and complies with the
decisions of the Council;
(c) To guarantee the solvency of
its National Bureau;
(d) To deposit at its National
Bank or a designated Commercial
Bank a letter of credit in the
amount equivalent to 174,000 UA to
guarantee the performance by its
National Bureau of the obligations
under Article 5.
(e) Drawing may be made under the
West African Clearing Account to
discharge any obligations under
this scheme.
2. The responsibilities of a
subsidiary participant shall be:
(a) To issue to its policy holders
ECOWAS BROWN CARDS guaranteeing
such policy holders adequate cover
against the motor vehicle third
party risks they incur in the
countries which they visit;
(b) To undertake, by way of
reimbursement to the National
Bureau, payment of compensation
for damages and any accessory or
related expenses;
(c) To contribute to the operating
of the National Bureau and,
through the Bureau, to the
operating expenses of the Council
of Bureaux.
ARTICLE 4
THE ECOWAS BROWN CARD
1. An ECOWAS BROWN CARD is hereby
established.
2. This card shall be of a
strictly uniform type to be
determined by decision of the
Council of Bureaux, which alone
may alter the format,
typographical layout, colour and
content of the card.
3. The card shall include the
following particulars: the name
and address of the National Bureau
which has issued it, particulars
of the insurer insuring the motor
vehicles, the identity of the
policy holders, identification of
the vehicle, period of validity of
the card, its individual serial
number, a list of countries in
which it is valid, and the name
and address in each of those
countries, of the National Bureau
which the policy holder shall
notify in the event of an
accident. The card shall be signed
by the insurer and by the policy
holder.
4. The guarantee provided by the
ECOWAS BROWN CARD shall cover the
liability incurred by the holder
of the card in accordance with the
laws of such member country which
he visits.
5. Notwithstanding the terms of
the insurance policy under which
it is issued, the card shall
provide all the guarantees
required by the laws or
regulations governing compulsory
motor vehicle insurance in the
country in which the accident
occurred. Such guarantees shall
be subject to the conditions and
limitations contained in the
insurance policy, if the said
conditions and limitations are
permitted by the laws or
regulations of the party to this
Protocol in which the accident has
occurred.
6. The ECOWAS BROWN CARD shall be
recognised as a valid certificate
of insurance in the territories of
the parties to this Protocol in
which the production of such a
certificate is required, either
within the national territory or
at its frontiers, as a condition
for the circulation of motor
vehicles.
7. For a party in whose territory
insurance is not compulsory by
law, the guarantee provided by the
ECOWAS BROWN CARD shall correspond
to the third party liability on
the motorist in accordance with
the laws and regulations in force
in the country where the accident
occurred, as interpreted and
applied by the local judicial or
administrative authorities.
8. During the period of its
validity, the ECOWAS BROWN CARD
should constitute proof of the
existence of an insurance policy.
It will be effective only in the
event that the original cover is
in force.
ARTICLE 5
THE NATIONAL BUREAUX
1. The status of each National
Bureau shall be defined by the
legal provisions in force, for
this category of establishment, in
the territory of a party to this
Protocol. Its method of operation
shall be determined by the legal
instrument by which it is created.
2. In accordance with paragraph 2
of Article 2, each National Bureau
shall be composed of insurers
authorised by the local
supervisory authorities for
insurance against motor vehicle
liability risks. The insurer shall
apply for administration to the
National Bureau and shall provide
the Bureau with any guarantees it
may require. In a country where
one single State-owned insurance
company has the monopoly of all
insurance operations, the
Government of that party to this
Protocol may designate that
company to act as the National
Bureau of that country.
3. The National Bureau shall be
financed by the contributions of
members. The amount and method of
payment of contributions shall be
determined at the time of
admission to membership.
4. The members shall undertake to
place at the disposal of the
National Bureau as advances, at
its request, the sum necessary for
its operation.
5. The dissolution of a National
Bureau shall be at the initiative
of the Government of the Party to
this Protocol which shall take the
necessary decision, stating the
conditions and modalities of the
dissolution. The notification of
this decision shall be made to the
Council of Bureau at least six
months before the dissolution. The
National Bureau shall act either
as an agency handling commitments
under ECOWAS BROWN CARDS issued by
other National Bureaux.
A.
The National Bureau, as an issuing
agency:
(a) shall arrange for the printing
of the cards and shall allot to
each of them a serial number in a
single series; it shall issue the
cards to insurers who are members
of the Bureau and who request
them. The said insurers shall keep
a record enabling them to identify
card-holders and the particulars
shown on their cards; the insurers
shall undertake not to issue cards
to persons other than their own
policy-holders who have taken out
a policy against motor vehicle
liability risks;
(b) shall give to each of the
National Bureau of other
signatories to this Protocol a
general mandate authorising them
to receive statements and claims
concerning accidents caused in the
territory of such other parties by
the holders of the cards it has
issued, to proceed with the
investigation of such accidents
and to pay compensation on
request, supported by the usual
documents of proof. It shall
reimburse the National Bureau
which has paid compensation as
follows:
(i)
the total amount paid by way of
damages, expense, and
disbursements or, where the
settlement is made by amicable
agreement, the amount agreed in
the settlement including the
agreed expenses. Fines shall on no
account be reimbursed;
(ii) the expenses actually
incurred in the investigation and
settlement of the claim;
(iii) a handling fee calculated as
a percentage of the amount of
damages and legal costs or
expenses agreed upon in a
settlement by amicable agreement.
This percentage shall be
determined in advance and for all
cases by the Council of Bureaux;
(c) shall make reimbursement as
calculated on the above-mentioned
basis, including the minimum
handling fee, even if the claim
has been settled without any
payment being made to an injured
third party. Reimbursement shall
be made to the requesting National
Bureau; in the currency of its
country and free of any exchange
of transfer charges;
(d) shall pay interest on the
amount involved at the rate of 8
per cent calculated from the date
the claim is made up to the day it
is paid, if after a period of
three months from the day the
request for reimbursement is made
the settlement has not been
received.
B.
The National Bureau, as a handling
agency:
(a) shall, as soon as it is
informed of an accident caused in
a country which is a party to this
protocol by the holder of an
ECOWAS BROWN CARD issued by the
National Bureau of another Party
to this Protocol, act in the best
interest of the Bureau on
receiving a claim for damages, it
shall undertake necessary
verification concerning the
circumstances of the accident and,
on the basis of these
verifications, it shall advise the
issuing Bureau and take any
administrative or non-judicial
action which it deems necessary.
At the judicial level, the Bureau,
in its capacity as a handling
agency, shall be entitled to take
any steps to institute or contest
an action. In the case of claims
for damages below a certain amount
established by agreement with each
of the other issuing Bureaux the
Bureau may agree to a settlement
out of court. In the case of
claims for damages exceeding the
amount so established, the Bureau
shall obtain the prior consent of
the issuing Bureau before agreeing
to any settlement;
(b) shall not knowingly entrust or
relinquish the handling of a claim
to an insurer or to any person who
may have a financial interest in
the accident which has given rise
to the claim;
(c) shall be entitled, in a case
where the compensation payable is
in excess of 8,696 UA, to require
the issuing Bureau to instruct a
bank or other financial
establishment to place immediately
at its disposal, at its registered
office, a sum corresponding to the
estimated amount of the
compensation.
ARTICLE 6
THE COUNCIL OF BUREAU
1. The Council of Bureaux
(hereinafter referred to as "the
Council") is hereby established.
2. The Council shall consist of
one full fledged representative
and one alternate representative
selected from each National
Bureau. It shall appoint on
rotatory basis its Chairman and
Vice-chairman from among the
representatives in alphabetical
order and for a period of one
year. In the absence of both the
Chairman and Vice-chairman the
members present shall elect one
representative to preside over the
meeting.
3. The Council shall hold its
first meeting not later than two
months after the entry into force
of this Protocol at the Executive
Secretariat of ECOWAS which shall
be the Temporary Headquarters of
the Council until such a time the
Council may decide on its
Headquarters.
4. The Council shall meet at least
once a year at a place and on a
date which it shall determine. On
the initiative of its Chairman or
at the request of at least one
third of its members, a meeting of
the Council may be summoned by
invitation to members at least 30
days before such a meeting.
5. The Council shall itself
establish the agenda for its
meetings, and only items included
in the agenda shall be discussed.
Items proposed in writing to the
Chairman by at least a quarter of
the members not less than ten days
before the meeting shall be
included in the agenda.
6. Each member of the Council
shall have one vote. With the
exception of decisions under
paragraph 12 of Article 6,
decisions of the Council shall be
by a simple majority vote;
decisions shall require the
presence of the representatives of
at least half the members.
7. The Council shall appoint the
Chairman who shall hold office for
one year and co-ordinate the
activities of the Council.
8. The Council shall establish its
annual budget and shall fix the
annual contributions to be paid by
members which shall be an equal
amount as among the members.
9. The Council shall have a
general function of orientation,
co-ordination and supervision over
the whole of the ECOWAS Insurance
Scheme established by this
Protocol.
10. The Council shall determine
the form and content of the ECOWAS
BROWN CARD.
11. The Council shall co-ordinate
the operation of the National
Bureaux for this purpose, it shall
prepare a standard inter-Bureaux
contract which shall be signed by
all Bureaux and which the council
alone shall be entitled to amend.
This contract shall in particular
determine the maximum amount for
the delegation of owners of
settlement by one National Bureau
to another, and the minimum
handling fee payable for each case
handled by them.
12. Any dispute between two or
more National Bureaux as to the
interpretation on application of
this Protocol shall be referred to
Council. The Council shall decide
the dispute on absolute majority.
The decision pronounced shall be
final and binding on the parties
to the dispute. The decision shall
be notified to all the National
Bureaux and the Council shall see
to its execution.
13. The Council shall on its own
initiative or on the initiative of
any Government Party to this
Protocol consider and, if it deems
it advisable, propose changes in
the laws or regulations of the
parties to this Protocol with a
view to improving the functioning
of the ECOWAS BROWN CARD scheme,
or to harmonising the systems of
compensation for damages
occasioned by road traffic
accidents, or to improving
accident prevention.
ARTICLE 7
WITHDRAWALS AND EXCLUSION
1. A Party to this Protocol may
withdraw from it any time after
the expiration of a period of one
year from the date on which this
Protocol has entered into force by
means of notification in writing
addressed to the Executive
Secretariat of ECOWAS. The
withdrawal shall take effect
twelve (12) months after the date
of receipt of the notification by
the Executive Secretariat, during
which period the withdrawing Party
shall remain liable for its
financial obligation under this
Protocol.
Any insurer member ceasing for any
reason to be a member of the
National Bureau shall remain bound
by the undertakings assumed by the
Bureau during the period of its
membership.
2. If any Party is in breach of
its obligations under this
Protocol and such breach
substantially impairs the
operation of this Agreement the
Heads of States and Government may
by a resolution exclude such a
Party from this Protocol.
3. The Council of Bureau shall
determine any settlement of
accounts with a withdrawing or
excluded Party. A withdrawing or
excluded Party shall not be
discharged from its obligations
until the extinction of all its
existing liabilities.
ARTICLE 8
REVISION AND AMENDMENT
1. Any Party to this Protocol may
submit proposals for amendment or
revision of this Protocol.
2. Any such proposal shall be
submitted to the Executive
Secretariat of ECOWAS which shall
communicate them to other Member
States not later than thirty days
after receipt of such proposals.
Amendments or revisions shall be
considered by the Heads of State
and Government after Parties have
given one month's notice thereof.
ARTICLE 9
ENTRY INTO FORCE
1. The present Protocol shall
enter into force provisionally
upon signature by Heads of State
and Government of Member States
and definitely upon ratification
by at least seven (7) signatory
states in accordance with the
constitutional procedure
applicable to each Member State.
2. This Protocol and all the
instruments of ratification shall
be deposited with the Executive
Secretariat which shall transmit
certified true copies of this
Protocol to all Member States
informing them of dates on which
the Instruments of Ratification
have been deposited. This Protocol
shall be registered with the
Organisation of African Unity, the
United Nations Organisation and
such Organisations as the Heads of
State and Government of ECOWAS
shall determine.
May this 9th day of January, 1986.
FLT.-LT. JERRY JOHN RAWLINGS
Chairman of the Provisional
National Defence Council
Date of Gazette Notification: 28th
February, 1986.
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