INCOTERMS 2000 SITE, UIBE
Trade Terms (贸易术语) —Definition and History • Trade terms refer to those terminologies which use simple words or phases or the acronyms to describe the basic terms of the transaction, indicating the composition of the price of traded goods, the place of delivery and/or place and time of passing of the risk, assigning responsibilities and costs between the exporter and the importer. • “Incoterms” is the abbreviation of International Commercial Terms (International Rules for the Interpretation of Trade Terms), which were first published in 1936 by the International Chamber of Commerce (ICC, 国际商会).
What is Incoterms国际贸易术语解释通则 • Incoterms are definitions and guidelines for sales contracts. • As terms of sale, Incoterms facilitate commerce by promoting understanding of the specific, respective tasks of trading parties. They define the roles of buyers and sellers in the arrangement of transportation; they also outline when transfer of ownership of merchandise takes place.
Why Incoterms • Frequently, parties to a contract are unaware of the different trading practices in their respective countries. This can give rise to misunderstandings, disputes and litigations, with all the waste of time and money that this entails. • By the 1920s, commercial traders had developed a set of trade terms to describe their rights and obligations with regard to the sale and transport of goods. These trade terms consisted of short abbreviations for lengthy contract provisions. Unfortunately, there was no uniform interpretation of them in all countries, and therefore misunderstandings often arose in cross-border transactions.
To improve this aspect of international trade, the ICC developed INCOTERMS, a set of uniform rules for the interpretation of international commercial terms defining the costs, risks, and obligations of buyers and sellers in international transactions. Thus, the uncertainties of different interpretations of such terms in different countries can be avoided or at least reduced to a considerable degree.
Scope of Incoterms • It should be stressed that the scope of Incoterms is limited to matters relating to the rights and obligations of the parties to the contract of sale with respect to the delivery of goods sold • in the sense of “tangibles”, not including “intangibles”
Revisions of Incoterms • As the guardian and originator of Incoterms, ICC has a responsibility to consult regularly all parties interested in international trade to keep Incoterms relevant, efficient and up-to-date. • First published in 1936, these rules have been periodically revised to account for changing modes of transport and document delivery. The current version is Incoterms 2000. • The main reason for successive revisions of Incoterms has been the need to adapt them to contemporary commercial practice. • In 1953, trade term dealing with air transport was introduced. • In the 1980 revision, trade terms dealing with multimodal transport (多式联运)and electronic documents were introduced. • In the 1990 revision, the clauses permitting the seller to provide proof of delivery by EDI-messages were added.
Incoterms 2000 • The 2000 revision took about two years. During the revision, ICC has done its best to invite views and responses from a wide ranging spectrum of world traders. Serious efforts have been made to ensure that the wording used in Incoterms 2000 clearly and accurately reflects trade practice. Moreover, substantive changes have been made in two areas: • the customs clearance (清关) and payment of duty obligations under FAS and DEQ; • the loading and unloading (装货、卸货) obligations under FCA. • All changes, whether substantive or formal have been made on the basis of thorough research among users of Incoterms.
Use of Incoterms • Incoterms are not implied into contracts for the sale of goods. If the traders desire to use Incoterms, they must specifically include them in the contract. Further, the contract should expressly refer to the rules of interpretation as defined in the latest revision, i.e., Incoterms 2000, and they should ensure the proper application of the terms by additional contract provisions. • Incoterms are not “laws.” In case of a dispute, courts and arbitrators will look at: 1) the sales contract, 2) who has possession of the goods, and 3) what payment, if any, has been made.
Incoterms Do… Incoterms 2000 may be included in a sales contract if the parties desire the following: • To complete a sale of goods. • To indicate each contracting party’s costs, risks, and obligations with regard to delivery of the goods as follows: • When is the delivery completed? • How does a party ensure that the other party has met that standard of conduct? • Which party must comply with requisite licenses and government-imposed formalities? • What are the mode and terms of carriage? • What are the delivery terms and what is required as proof of delivery? • When is the risk of loss transferred from the seller to the buyer? • How will transport costs be divided between the parties? • What notices are the parties required to give to each other regarding the transport and transfer of the goods? • To establish basic terms of transport and delivery in a short format.
Incoterms Do Not… • Incoterms 2000 are not sufficient on their own to express the full intent of the parties. They will NOT: • Apply to contracts for services. • Deal with relief from obligations and exemptions from liability in case of unexpected or unforeseeable events; or, • Define contractual rights and obligations other than for delivery. • Specify details of the transfer, transport, and delivery of the goods. • Determine how title to the goods will be transferred. • Protect a party from his/her own risk of loss. • Cover the goods before or after delivery. • Deal with consequences of various breaches of contract, except those relating to the passing of risks and costs when the buyer is in breach of his obligation to accept the goods or to nominate the carrier under an F-term.
Other International Rules on Trade Terms • Warsaw Oxford Rules 1932 (1932年 华沙-牛津规则) published by International Law Association in Warsaw in1928, last revision was made in Oxford in 1932, only applies to CIF contract • Revised American Foreign Trade Definitions 1941 (1941年美国对外贸易定义修订本) • widely used in American countries, originated in 1919, The U.S. Export Quotations and Abbreviations • Includes six terms • Ex (Point of Origin) • FOB (Free on Board) • FAS (Free Along Side) • C&F (Cost & Freight) • CIF (Cost, Insurance and Freight) • Ex Dock (named port of importation)
Structure of Incoterms Incoterms are grouped into four categories: • The “E” term (EXW) – The only term where the seller only makes the goods available to the buyer at the seller’s own premises. • The “F” terms (FCA, FAS and FOB) – Terms whereby the seller is called upon to deliver the goods to a carrier appointed by the buyer. • The “C” terms (CFR, CIF, CPT and CIP) – Terms where the seller has to contract for carriage, but without assuming the risk of loss of or damage to the goods or additional costs due to events after shipment and dispatch. C terms evidence “shipment” (as opposed to “arrival”) contracts. • The “D” terms (DAF, DES, DEQ, DDU and DDP) – Terms whereby the seller has to bear all costs and risks needed to bring the goods to the place of destination. D terms evidence “arrival” contracts.
EXW - Ex Works 工厂交货(... named place) • “Ex works” means that the seller delivers when he places the goods at the disposal of the buyer (置于买方处置之下)at the seller’s premises (卖方所在地)or another named place (i.e. works, factory, warehouse, etc.) not cleared for export and not loaded on any collecting vehicle. • This term thus represents the minimum obligation for the seller, and the buyer has to bear all costs and risks involved in taking the goods from the seller’s premises.
EXW - Ex Works(... named place) • However, if the parties wish the seller to be responsible for the loading of the goods on departure and to bear the risks and all the costs of such loading, this should be made clear by adding explicit wording to this effect in the contract of sale. • The seller must give the buyer sufficient notice as to when and where the goods will be placed at his disposal; the buyer must provide the seller with appropriate evidence of having taken delivery.
EXW - Ex Works(... named place) • The seller must provide at his own expense packaging (unless it is usual for the particular trade to make the goods of the contract description available unpacked) which is required for the transport of the goods, to the extent that the circumstances relating to the transport are made known to the seller before the contract of sale is concluded. • The buyer must pay the costs of any pre-inspection, INCLUDING inspection mandated by the authorities of the country of export.
EXW - Ex Works(... named place) • This term should not be used when the buyer cannot carry out the export formalities directly or indirectly. In such circumstances, the FCA term should be used, provided the seller agrees that he will load at his cost and risk.
Group F: Shipment terms (装运)Main carriage unpaid(主要运费未付)
FCA - Free Carrier 货交承运人(... named place) • “Free Carrier” means that the seller delivers the goods, cleared for export, to the carrier nominated by the buyer at the named place. • This term may be used irrespective of the mode of transport (运输方式), including multimodal transport (多式联运). • It should be noted that the chosen place of delivery has an impact on the obligations of loading and unloading the goods at that place. • If delivery occurs at the seller’ premises (卖方所在地), the seller is responsible for loading. • If delivery occurs at any other place, the seller is not responsible for unloading.
FCA - Free Carrier(... named place) • The buyer must contract at his own expense for the carriage of the goods from the named place. The seller has no obligation for contract of carriage (运输契约). However, if requested by the buyer or if it is commercial practice and the buyer does not give an instruction to the contrary in due time, the seller may contract for carriage on usual terms at the buyer’s risk and expense. • The buyer must pay the costs of any pre-shipment inspection (PSI, 装船前检验) EXCEPT when such inspection is mandated by the authorities of the country of export.
案例分析 • 我方出口手表到印度，按FCA Shanghai Airport签约，交货期8月。出口企业8月31日将手表运到上海虹桥机场并由航空公司收货开具航空运单。我方即电传印度发出装运通知。9月2日手表运抵孟买，将到货通知连同发票和航空运单送交孟买XX银行。该银行即通知印商提货、付款，但印商以延迟交货为由拒绝。
FAS - Free Alongside Ship (装运港船边交货)(... named port of shipment) • “Free Alongside Ship” means that the seller delivers when the goods are placed alongside the vessel at the named port of shipment. This means that the buyer has to bear all costs and risks of loss of or damage to the goods from that moment. • This term can only be used for sea or inland waterway transport. • The seller must give the buyer sufficient notice that the goods have been delivered alongside the nominated vessel; the buyer must give the seller sufficient notice of the vessel name, loading point and required delivery time.
FAS - Free Alongside Ship(... named port of shipment) • The FAS term requires the seller to clear the goods for export. This is a reversal from previous Incoterms versions which required the buyer to arrange for export clearance. • Different interpretations of FAS under Incoterms and in American countries.
FOB - Free on Board (装运港船上交货)(... named port of shipment) • “Free on Board” means that the seller delivers when the goods pass the ship’s rail (越过船舷) at the named port of shipment. This means that the buyer has to bear all costs and risks of loss of or damage to the goods from that point. • This term requires the seller to clear the goods for export. • This term can only be used for sea or inland waterway transport. If the parties do not intend to deliver the goods across the ship’s rail, the FCA term is more appropriate to use.
FOB - Free on Board (... named port of shipment) • Transfer of risks The seller must bear all risks of loss of or damage to the goods until they have passed the ship’s rail at the named port of shipment; the buyer must bear all risks of loss of or damage to the goods from the time they have passed the ship’s rail at the named port of shipment. • Division of costs The seller must pay all costs relating to the goods until they have passed the ship’s rail at the named port of shipment; the buyer must pay all costs relating to the goods from the time they have passed the ship’s rail at the named port of shipment.
FOB - Free on Board (... named port of shipment) • The seller must give the buyer sufficient notice that the goods have been delivered alongside the nominated vessel; the buyer must give the seller sufficient notice of the vessel name, loading point and required delivery time. • Unfortunately, the word “FOB” is used by some merchants merely to indicate any point of delivery – such as “FOB factory”, “FOB plant”, “FOB Ex seller’s works” or other inland points – thereby neglecting what the abbreviation means: Free On Board. It remains the case that such use of FOB tends to create confusion and should be avoided.
案例分析 • 买卖双方按照FOB条件签订了一笔化工原料的买卖合同，装船前检验时，货物的品质良好，符合合同的规定。货到目的港，买方提货后检验发现部分货物结块儿，品质发生变化。经调查确认原因是货物包装不良，在运输途中吸收空气中的水分导致原颗粒状的原料结成硬块。于是，买方向卖方提起索赔，但卖方指出，货物装船前是合格的，品质发生变化是在运输途中发生的，也就是越过船舷之后才发生的，按照国际贸易惯例，其后果应由买方承担，因此，卖方拒绝赔偿。你认为此争议应如何处理？请说明理由。
案例讨论 • 有一份出售一级大米300吨的合同，按FOB条件成交，装船时经公证人检验，符合合同规定的品质条件，卖方在装船后已及时发出装船通知，但航行途中，由于海浪过大，大米被海水浸泡，品质受到影响，当货物到达目的港时，只能按三级大米的价格出售，因而买方要求卖方赔偿损失。
CFR - Cost and Freight 成本加运费(…named port of destination) • “Cost and Freight” means that the seller delivers when the goods pass the ship’s rail in the port of shipment. • The seller must pay the costs and freight necessary to bring the goods to the named port of destination BUT the risk of loss of or damage to the goods, as well as any additional costs due to events occurring after the time of delivery, are transferred from the seller to the buyer. • This term requires the seller to clear the goods for export.
CFR - Cost and Freight(…named port of destination) • The seller must contract on usual terms at his own expense for the carriage of the goods to the named port of destination by the usual route in a seagoing vessel (or inland waterway vessel as the case may be) of the type normally used for the transport of goods of the contract description. • Transfer of risks Same with FOB term
CFR - Cost and Freight(…named port of destination) • Division of costs • The seller must pay all costs relating to the goods until they have been delivered on board the vessel at the port of shipment; and the freight and all other costs resulting from the contract of carriage, including the costs of loading the goods on board and any charges for unloading at the agreed port of discharge which were for the seller’s account under the contract of carriage. • The buyer must pay all costs relating to the goods from the time they have been delivered on board the vessel at the port of shipment; all costs and charges relating to the goods whilst in transit until their arrival at the port of destination, unless such costs and charges were for the seller’s account under the contract of carriage; and unloading costs including lighterage (驳运费)and wharfage (码头费) charges, unless such costs and charges were for the seller’s account under the contract of carriage.
CFR - Cost and Freight(…named port of destination) • The significance of notice of the seller to the buyer on the delivery of goods • The CFR term can be used only for sea and inland waterway transport. If the parties do not intend to deliver the goods across the ship’s rail, the CPT term should be used.
Case: CFR and Shipping Notice • An import and export company in China signed an export contract with an importer in Marseilles, France on drawnwork tablecloth for an amount of USD80,000, payment by D/P at sight. • On the morning of January 8, 1997, the goods were all loaded onto the named vessel. The export salesperson in charge of this contract got so busy that he failed to send the buyer the shipping advice until the next morning. Unexpectedly, when the French importer went to the local insurance company to insure the goods, the latter had already leaned that the ship suffered a wreck on January 9 and refused to underwrite. The French importer immediately sent a telex saying “owing to your delayed shipping advice, we are unable to insure the goods. Since the vessel has been destroyed in a wreck, the loss of goods should be for your account. At the same time, you should compensate our profit and expense losses which amount to USD80,000.” Soon all the shipping documents sent through the collecting bank were returned to the export company, for the reason that the importer refused to take up the documents.
Case: CFR and Goods Quality • A French company imported a batch of wheat on CFR basis. The contract provided that the landing quality of the goods should be taken as final. However, when the goods arrived at the destination, the import quarantine bureau detained the goods as they found that the goods contained a great deal of bacteria forbidden to enter the country. Unfortunately, the goods were consumed by a fire while in detainment. A dispute broke out between the buyer and the seller.
CIF - Cost Insurance and Freight(…named port of destination) 成本加保险费、运费 • “Cost, Insurance and Freight” means that the seller delivers when the goods pass the ship’s rail in the port of shipment. • The seller must pay the costs and freight necessary to bring the goods to the named port of destination BUT the risk of loss of or damage to the goods, as well as any additional costs due to events occurring after the time of delivery, are transferred from the seller to the buyer. • In CIF the seller also has to procure marine insurance against the buyer’s risk of loss of or damage to the goods during the carriage.
CIF - Cost Insurance and Freight(…named port of destination) • Consequently, the seller contracts for insurance and pays the insurance premium. Under the CIF term the seller is required to obtain insurance only on minimum cover. If the buyer wishes to have the protection of greater cover, he would either need to agree as much expressly with the seller or to make his own extra insurance arrangements. • When required by the buyer, the seller shall provide at the buyer’s expense war, strikes, riots and civil commotion risk insurances if procurable. The minimum insurance shall cover the price provided in the contract plus ten percent (i.e. 110%) and shall be provided in the currency of the contract.
CIF - Cost Insurance and Freight(…named port of destination) • Transfer of risks Same with FOB term • Division of costs The seller must pay all the costs as in the case of CFR term plus the costs of insurance. • The seller must contract on usual terms at his own expense for the carriage of the goods to the named port of destination by the usual route in a seagoing vessel (or inland waterway vessel as the case may be) of the type normally used for the transport of goods of the contract description.
CIF - Cost Insurance and Freight(…named port of destination) • The CIF term requires the seller to clear the goods for export. • This term can be used only for sea and inland waterway transport. If the parties do not intend to deliver the goods across the ship’s rail, the CIP term should be used. • Symbolic Delivery (象征性交货)
Symbolic Delivery In a case in which goods were sold on terms “CIF Hong Kong shipment from continental port not later than 31st October”, the goods were actually shipped after that date, but the bill of lading was forged to indicate shipment on time. The buyers discovered the forgery only after having accepted physical delivery of the goods and did not make any objection to the quality of the goods delivered. The court observed: “[T]here is a right to reject documents and a right to reject goods, and the two things are quite distinct. A CIF contract puts a number of obligations upon the seller, some of which are in relation to the goods and some of which are in relation to the documents. So far as the goods are concerned, he must put on board at the port of shipment goods in conformity with the contract description, but he must also send forward documents, and those documents must comply with the contract.” Kwei Tek Chao v. British Traders & Shippers Ltd (1954) 2
案例分析 • 按CIF贸易术语出口，卖方按照合同的规定装船完毕后取得了包括提单在内的全套装运单据。但是，载货的船舶在启航后第二天就触礁沉没。买方闻讯后提出拒收单据、拒付货款。请问，卖方应该如何处理？为什么？
案例分析 • 1996年某出口公司，对加拿大魁北克某进口商出口500吨三路核桃仁，合同规定价格为每吨4800加元CIF魁北克，装运期不得晚于10月31日，不得分批装运和转运并规定货物应于11月30日前到达目的地，否则买方有权拒收，支付方式为90天远期信用证。加方于9月25日开来信用证。我方于10月5日装船完毕，但船到加拿大东岸时已是11月25日，此时魁北克已开始结冰，承运人担心船舶驶往魁北克后出不来，便根据自由转船条款指示船长将运往魁北克的货物全部卸在哈利法克斯，然后从哈港改装火车运往魁北克。待这批货物运到魁北克时已是12月2日。于是进口商便以货物晚到为由拒绝提货，除非我方降价20%以弥补其经济损失。请问买方的要求是否合理？
案例分析 • 买卖双方按CIF条件签订了一笔初级产品的交易合同。在合同规定的装运期内，卖方备妥了货物，安排好了从装运港到目的港的运输事项。在装船时，卖方考虑到从装运港到目的港距离较近，且风平浪静，不会发生什么意外，因此，没有办理海运货物保险。实际上，货物也安全及时抵达目的港，但卖方所提交的单据中缺少了保险单，买方因市场行情发生了对自己不利的变化，就以卖方所交的单据不全为由，要求拒收货物拒付货款。请问，买方的要求是否合理？此案应如何处理？
案例讨论 • 我某外贸公司按CIF条件向国外出口一批化工产品。该产品在常温下呈小颗粒结晶状态，但在高温天气下就会熔化，并对品质产生影响。签订合同之后，买方曾发传真给卖方，提醒他注意装船时的温度，避开高温天气，并且要求采用集装箱直达运输，中途不转船。卖方回电表示他会照办，请买方放心。 • 到了合同规定的装运期，即当年的7月底，卖方租用了集装箱发运货物，但未能租到直达船，于是该船在香港转船。转船期间在香港遭遇到高温天气。货物运抵目的港，在卸货过程中，买方雇佣的工作人员发现部分包装箱底部与集装箱粘连，仔细查看原因，发现时由于货物发生熔化渗漏出来所导致的。而造成货物熔化的原因则是在运输途中遇到高温天气。买方就此向卖方提出索赔，认为他违反了双方的约定。但卖方却拒绝理赔，理由是合同和信用对此并未作出明确规定。
CPT - Carriage Paid to 运费付至(... named place of destination) • “Carriage paid to...” means that the seller delivers the goods to the carrier nominated by him but the seller must in addition pay the cost of carriage necessary to bring the goods to the named destination. This means that the buyer bears all risks and any other costs occurring after the goods have been so delivered. • If subsequent carriers are used for the carriage to the agreed destination, the risk passes when the goods have been delivered to the first carrier.
CPT - Carriage Paid to 运费付至(... named place of destination) • “Carrier” (承运人) means any person, who, in a contract of carriage, undertakes to perform or to procure the performance of transport, by rail, road, air, sea, inland waterway or by a combination of such modes. • This term may be used for any mode of transport including multimodal transport.