How the road carriers liability can be assessed in Cameroon.
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Transport is one of the world’s largest human activities. It is essential in any economy and plays a major role in the spatial relationships between geographic locations. It builds bridges between continents, between countries within and outside, between politics and business in intra-community relations and finally population of a given region. Transport is thus a service that operates on several levels, affecting many aspects of life so that one cannot imagine a better economy or a world without transportation. It thus constitutes a real and powerful force for progress.
In sub-Saharan Africa, especially in West and Central Africa, carriage by road is an essential part of the policy of economic integration of States insofar as it is the primary means of communication and connection of people and property. It is one of the main paths of the subregional integration and the main instrument of trade between States party to the OHADA Treaty.4 In addition, the OHADA text applicable to contracts of carriage by road is a necessary tool which attracts English-speaking countries to the aforementioned legal space because it contains the essential rules of the common law system.
The essential purpose of transportation law is to facilitate the movement of people and goods. The means of transportation of these goods are numerous; it could be by air, by sea or by land. It could also be by means of road transport.
The successful acceptance and application of international uniform rules such as the CMR, and the UACCGR depends on the outcome which are consistent and predictable within all the member States. Within member states of the Organization for the Harmonization of Business Law in Africa, road transport constitute between 60 to 90% of the movement of goods and persons. The ease to use the road makes road transport within the OHADA Zone a preferred mode of transport. In effect, the geographical situation has made certain countries within the OHADA Zone not to have access to the sea.
In the contract of carriage of goods by road, all parties have to contribute to the execution of the carriage contract and in doing this; they have rights and obligations thereto. The obligations carried by these parties’ leads to liability when it is poorly executed or not executed at all. With the presumption of liability under section 16(1) of the UACCGR, the road carrier is placed at a vulnerable position. This poses as the exclusiveness of the road carrier’s liability. However, the said UCCGR in line with the CMR provides various circumstances under which these liabilities could be limited. Nevertheless, there are limits to the exemptions of the liabilities.
1.1 BACKGROUND OF THE STUDY
The Treaty for the Harmonization of Business Law in Africa was signed in Port Louis (Mauritius), in October 17, 1993 and entered into force on 18 September 1998. It was amended by the Treaty of Quebec on 17 October 2008. This revised treaty entered into force March 21, 2010. The treaty’s main objective is to address the legal uncertainty and judicial existing in States parties. To do this, it adopted new Uniform Acts including the Uniform Act on the Contract of Carriage of Goods by Road, 2004, (herein referred to as UACCGR) which is the subject of our study.
The OHADA Treaty has also established a Joint Court of Justice and Arbitration responsible for the interpretation and uniform application of those acts. The UACCGR was adopted March 22nd, 2003 and entered into force on 1 January 2004. It is applicable in the same way in all Contracting States.
The UACCGR applies to any contract for the transportation of goods by road when the place of taking over of the goods and the place designed for delivery as specified in a given contract, are located within the territory of either an OHADA member state, or two different States, one of which is a signatory to the OHADA Treaty. The Act applies regardless of the domicile and nationality of the parties to the contract of carriage14. Contracts for the carriage of goods by road that fall within the scope of the Uniform Act are defined as any contract whereby an individual or a legal entity, acting as the carrier, undertakes as a principal undertaking and for financial consideration to move from one place to another by road, using a vehicle the goods handed over by another person called the sender. Thus the Uniform Act does not apply to contracts for carriage without financial consideration, although the definition seems to imply that it is applicable to any occasional carriage of goods by nonprofessionals if such a carriage is made for financial consideration.
The adoption of the Uniform Act on the carriage of goods by road irreversibly constituted a significant and beneficial contribution in the unification and the modernization of the regulation on the carriage of goods by road in the States-members of OHADA. The OHADA law so general and especially UACCGR eliminate whatever conflict of laws in the carriage of goods.16 The UACCGR leaves the provisions of national law as long as they are not contrary to it. The UACCGR may also be subject to differing interpretations by national courts which are the ordinary courts of harmonized law.
In the commercial life of any country, the need for carrying goods from one place to another cannot be overemphasized. Also, goods are to be moved from one country to another. For these purposes, a contract of carriage is to be entered into. The persons or legal entities which carry goods are known as carriers.
One of the important issues in road transport is the determination of the very basis for assigning liability to the carrier. The appearance of liability involves first finding fact requiring a response from the law, that is to say, a need for legal action. In this regard, several concepts have been proffered, such as the concepts of fault, default in guarding objects, guarantee, damage and risk. Stringent responsibility of the carrier is the obligation to deliver the goods to the agreed point of destination in the same condition as in which they were received. Not merely to try to do so.
When the promised result is not materialized, compensation will be claimed. The consignor merely has to prove that the damage or loss occurred while the goods were in charge of the carrier. A burden of proof that obviously is far easier to bear than proving the exact cause of the damage suffered by the claimant, which is born by the carrier in order to be freed from damage claims.
After the consignor has proved the absence of the promised outcome, a breach of contract is assumed and it’s the carrier’s turn to prove the contrary. If the carrier is able to establish an uncontrollable cause, like for instance a force majeure (Act of God) or an inherent vice of defects in the goods themselves, he will not be held liable for the damages suffered by the claimant, despite the contract being breached. This fault liability usually means that the carrier is only responsible for the consequences of the negligent acts and omissions that are committed by himself or employee or agents.
The OHADA Uniform Act on the Carriage of Goods by Road 2004 provides the various situations where the road carrier can limit his liability. However, the exemption to the liabilities can only be implemented under strict conditions.
1.2 STATEMENT OF THE PROBLEM
Studies carried out in the field of carriage of goods by road have shown that, the OHADA legislature as CMR poses to the road carrier a presumption of liability pursuant to Article 16
(1) of UACCGR. Due to the carrier’s obligation of result, the burden of proof is on the road carrier to provide a cause of exemption. This puts the road carrier at a vulnerable position of being likely to bear the liability if the presumption is not rebutted. It should be recalled that the presumption of responsibility of the carrier does not imply a purely inactive attitude of the beneficiary. ……………………………………………………………………………………………………….Get the complete copy to continue reading