INCOTERMS 2000 — In context ICC Iceland Legal

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INCOTERMS 2000 - In context ICC Iceland Legal Director Søren Theilgaard 24 March 2004 INCOTERMS 2000 - Søren Theilgaard 1

INCOTERMS 2000 q q q q 24 March 2004 Welcome and Introduction Presentation of INCOTERMS and Contract of Carriage INCOTERMS, Delivery and Payment INCOTERMS and Insurance Problem areas in INCOTERMS 2000 Questions and Answers Closing INCOTERMS 2000 - Søren Theilgaard 5 25 20 20 15 60 10 2

PRESENTATION OF INCOTERMS q History - What is INCOTERMS 8 Supplement to Sale-Purchase Agreement 8 Record of international customs and usage 8 1. version 1936. Updates 1953 - 1980 - 1990 8 What is new in INCOTERMS 2000 q No obligation - Where applicable q 13 Clauses and 4 categories q 10 obligations q Variants of INCOTERMS 24 March 2004 INCOTERMS 2000 - Søren Theilgaard 3

INCOTERMS 2000 What is new ? q EXPORT / IMPORT CLEARANCE IN ONES OWN COUNTRY - NOW ALSO FAS OG DEQ q LOADING ON AND UNLOADING FROM VEHICLE - FCA: At Seller’s premises Seller must load At terminal carrier must unload - DAF: - DDU: - DDP: 24 March 2004 Goods arriving at destination without being unloaded from vehicle INCOTERMS 2000 - Søren Theilgaard 4

INCOTERMS 2000 What is new ? q FCA - CLAUSE HAS BEEN SIMPLIFIED AGAIN - No distinction between different means of transportation, full container load or consolidated goods q GREATER CONSISTENCY IN TERMINOLOGY q More places indicate: NO OBLIGATION 24 March 2004 INCOTERMS 2000 - Søren Theilgaard 5

INCOTERMS 2000 What is new ? q EXPORT / IMPORT CLEARANCE: - Only WHERE REQUIRED q CFR/CIF A 8 - CHARTER PARTIES - Unlike Incoterms 1990 no requirement that the Charter Party must be presented when transport document refers to the Charter Party 24 March 2004 INCOTERMS 2000 - Søren Theilgaard 6

INCOTERMS 2000 4 CATEGORIES Group E Departure EXW Group F Main carriage unpaid FCA - FAS - FOB Group C Main carriage paid CFR - CIF - CPT - CIP Group D Arrival DAF - DES - DEQ - DDU - DDP < 1953 24 March 2004 1967 1980 INCOTERMS 2000 - Søren Theilgaard 1990 7

INCOTERMS 2000 MODE OF TRANSPORT AND THE APPROPRIATE INCOTERM 2000 Any mode of transport Group E EXW Group F FCA Group C CPT - CIP Group D DAF - DDU - DDP 24 March 2004 INCOTERMS 2000 - Søren Theilgaard 8

INCOTERMS 2000 MODE OF TRANSPORT AND THE APPROPRIATE INCOTERM 2000 Maritime transport only Group F FAS - FOB Group C CFR - CIF Group D DES - DEQ - or in combination with a different mode of transport 24 March 2004 INCOTERMS 2000 - Søren Theilgaard 9

10 MIRRORED OBLIGATIONS 1) PROVIDE GOODS - PAYMENT OF PRICE 2) LICENSES, AUTHORIZATIONS AND FORMALITIES 3) CONTRACT OF CARRIAGE AND INSURANCE 4) DELIVERY - TAKING DELIVERY 5) TRANSFER OF RISKS 6) DIVISION OF COSTS 7) NOTICE TO BUYER AND SELLER 8) PROOF OF DELIVERY, TRANSPORT DOCUMENT OR EQUIVALENT ELECTRONIC MESSAGE - EDI 9) INSPECTION OF GOODS, PACKAGING AND MARKING 10) OTHER OBLIGATIONS 24 March 2004 INCOTERMS 2000 - Søren Theilgaard 10

CONTRACT OF CARRIAGE q Rules regulating international transportation: Road - CMR Geneva Convention 1956 Rail - COTIF Berne Convention + CIM Air - Warszaw and Montreal Convention) Marine - Merchant Shipping Act Carriage of Goods by Sea (Haag-Visby and Hamburg Rules) Freight Forwarder - NSAB 2000 24 March 2004 INCOTERMS 2000 - Søren Theilgaard 12

CARRIER’S LIABILITY q Liability Road: Control Rail: Act of God Air Way: Act of God Þ delay Marine: - Burden of proof Negligence - reverse burden of proof Freight Forwarder: Control 24 March 2004 INCOTERMS 2000 - Søren Theilgaard 13

CARRIER’S LIABILITY q Limit to liability Road: 8, 33 SDR pr. kilo Rail: 17 SDR pr. kilo Air Way: 17 SDR pr. kilo Marine: 667 SDR pr. kollo or 2 SDR pr. kilo Freight Forwarder: 8, 33 SDR pr. kilo 1 SDR = app. 1. 20 EURO 24 March 2004 INCOTERMS 2000 - Søren Theilgaard 14

CARRIER’S LIABILITY q Limit to loss in case of delay freight Rail: 3 x freight Air Way: 17 SDR pr. kilo Marine: 2½ x freight 24 March 2004 Road: Freight Forwarder: freight INCOTERMS 2000 - Søren Theilgaard 15

INCOTERMS and CONTRACT OF CARRIAGE CARRIER q Receives Goods from Seller q Issues Transport Document q Responsible for the Goods during transportation q Hands over Goods to Consignee / Purchaser 24 March 2004 INCOTERMS 2000 - Søren Theilgaard 16

CONTRACT OF CARRIAGE q 3 Functions Receipt for the Goods Contract for carriage of the goods Authority to hand over the goods q Freight receipt - Sea Waybill / Non negotiable q Bill of Lading q Charterparty 24 March 2004 INCOTERMS 2000 - Søren Theilgaard 17

CONTRACT OF CARRIAGE q In accordance with Sales Contract Division of costs Risk - Interest Liner Terms or Tramp Terms q Cargo Insurance q Basis for payment through Documentary Credit q Contracting or performing carrier 24 March 2004 INCOTERMS 2000 - Søren Theilgaard 18

COSTS q In accordance with Sales Contract q INCOTERMS Item A. 6 and B. 6. Passing upon delivery exemption: C-Clauses q In accordance with Contract of Carriage In particular loading costs Transit costs Terminal Handling Costs 24 March 2004 INCOTERMS 2000 - Søren Theilgaard 19

DELIVERY q What is delivery q Consequences of delivery q What happens is delivery does not occur 8 passing of risk - A 5 / B 5 8 costs - A 6 / B 6 q q 24 March 2004 Where does delivery occur - INCOTERMS A 4 Choice of INCOTERM Clause has an impact on delivery, passing of risk and costs INCOTERMS 2000 - Søren Theilgaard 21

DELIVERY CI - P OB - F IF T CP FAS - C A FR C FC XW E | | | ES EQ -D D D | | Marine transport Carrier Border Seller’s place Departure 24 March 2004 AF DU DP D D | | Buyer’s place Arrival INCOTERMS 2000 - Søren Theilgaard 22

PAYMENT q WHEN MUST PAYMENT BE MADE q WHERE MUST PAYMENT BE MADE q PAYMENT IF GOODS ARE NOT RECEIVED q INSURANCE MAY REPLACE PAYMENT 8 8 8 24 March 2004 Cargo Insurance Credit Insurance Documentary Credit INCOTERMS 2000 - Søren Theilgaard 23

PAYMENT When must payment be made ? q CISG Art. 58 (1) If the buyer is not bound to pay the price at any other specific time he must pay it when the seller places either the goods or documents controlling their disposition at the buyer's disposal in accordance with the contract and this Convention. The seller may make such payment a condition for handing over the goods or documents. - Cf. however CISG Art. 57 (1) - Payment when documents are handed over to buyer. 24 March 2004 INCOTERMS 2000 - Søren Theilgaard 24

PAYMENT When must payment be made ? q CISG Art. 58 (2) If the contract involves carriage of the goods, the seller may dispatch the goods on terms whereby the goods, or documents controlling their disposition, will not be handed over to the buyer except against payment of the price. (3) The buyer is not bound to pay the price until he has had an opportunity to examine the goods, unless the procedures for delivery or payment agreed upon by the parties are inconsistent with his having such an opportunity. - E. g. Cash against Documents or FOB / CIF INCOTERMS 2000 24 March 2004 INCOTERMS 2000 - Søren Theilgaard 25

PAYMENT Where must payment be made ? q CISG Art. 57 (1) If the buyer is not bound to pay the price at any other particular place, he must pay it to the seller: (a) at the seller's place of business; or (b) if the payment is to be made against the handing over of the goods or of documents, at the place where the handing over takes place. q Payment against documents - Where and when documents are presented. 24 March 2004 INCOTERMS 2000 - Søren Theilgaard 26

CISG LANDE u CISG lande 24 March 2004 u Ikke CISG lande INCOTERMS 2000 - Søren Theilgaard 27

PAYMENT AGAINST DOCUMENTS q Which documents q Certainty that agreed documents are prepared q Payment before Delivery / Passing of Risk q Seller’s comfort q Buyer’s comfort q No guarantee that payment is made / only retention right 24 March 2004 INCOTERMS 2000 - Søren Theilgaard 28

LETTER OF CREDIT q Agreement on payment guarantee and terms of payment q Agreement between buyer and issuing bank q Honouring bank - Confirmed L/C q Satisfying Documentary Credit conditions q L/C Rules between banks / ICC 500 24 March 2004 INCOTERMS 2000 - Søren Theilgaard 29

INCOTERMS and INSURANCE q Insurance for own interest / Who is at risk ? q Seller insuring buyer’s risk CIF / CIP: q from delivery to destination contract price + 10% minimum conditions direct claim against insurance company Additional insurance required 8 theft, jettison, water damage, strikes, war 8 higher insurance sum, redestination, subsequent transportation, sale in transit 24 March 2004 INCOTERMS 2000 - Søren Theilgaard 31

INCOTERMS and INSURANCE q Institute Cargo Clauses C q Covers named events Institute Cargo Clauses A All risk insurance except - strikes, war, inherent vice, deficiency in packaging, ordinary leakage, delay q Certain events are not insurable 24 March 2004 Who carries the risk for the goods ? INCOTERMS 2000 - Søren Theilgaard 32

INCOTERMS and INSURANCE q Insurance Interest Insurance of subsequent interest q Who carries the risk for the goods ? Sale of goods in transit Claim against insurer q Who carries insurance interest Assignment of insurance interest Recourse against carrier 24 March 2004 INCOTERMS 2000 - Søren Theilgaard 33

INCOTERMS 2000 Problem Areas Frequently Asked Questions 24 March 2004 INCOTERMS 2000 - Søren Theilgaard 35

INCOTERMS 2000 FAQ q Delivery upon loading on / unloading from carrier’s vehicle. - must loading/unloading be completed for delivery to happen ? - who pays the cost and carries risk of loading / unloading ? EXW - Not loaded on collecting vehicle arrival FCA - Loaded on vehicle at Seller’s place, but not unloaded at carrier’s place DAF - not unloaded at border DDU/ DDP - q not unloaded at place of destination NB difference between FCA and FAS: FAS - Delivery only when goods are placed on quay alongside vessel 24 March 2004 INCOTERMS 2000 - Søren Theilgaard 36

INCOTERMS 2000 FAQ q When delivery is effected without loading (EXW) or unloading (FCA), what is the legal effect of Seller assists Buyer to do so ? - Reimbursement of costs ? - Risk ? - Is delivery postponed until loading / unloading is completed ? Similarly in DAF, DDU and DDP when carrier assists in unloading. q What is the meaning of EXW loaded / FCA unloaded ? - Does not intend to change the passing of risk 24 March 2004 INCOTERMS 2000 - Søren Theilgaard 37

INCOTERMS 2000 FAQ q FCA - Delivery when carrier arrives at Seller’s place with a container instead of a truck. Is Seller obliged to stowe goods in container ? 8 8 24 March 2004 Yes, if carrier so requests and it is not unusual (cf. Seller must load on carrier’s collecting vehicle) Does Seller not wish to assume that obligation he should have contracted EXW. INCOTERMS 2000 - Søren Theilgaard 38

INCOTERMS 2000 FAQ q Terminal Handling Charges - FCA 8 Export clearance - Seller’s cost 8 Cost of carriage, Warehouse storage after buyer’s receipt of goods - Buyer’s cost 8 Wharfage and Airport charges - Not export taxes that Seller must pay. Depends on whether charge is triggered before or after delivery. 8 Air transport security fee - similar - Possible clause 8 8 24 March 2004 THC for Seller’s expense Customs and practice between parties may shift THC INCOTERMS 2000 - Søren Theilgaard 39

INCOTERMS 2000 FAQ q Terminal Handling Charges - FOB 8 Seller’s cost until delivery when goods pass ship’s rail 8 Similarly according to FAS until ”alongside ship” (on quay or in barge) 8 If Seller wishes to avoid costs in port of shipment he must choose FCA 8 Costs relating to marine transportation, including quay charges and transshipment in subsequent port must always be paid by Buyer. q Terminal Handling Charges for container load 8 24 March 2004 Seller has effectively done what he is supposed to do when container has been loaded, whereas delivery and division of costs and risk does not occur until goods pass ship’s rail. - Not appropriate - Choose FCA instead. INCOTERMS 2000 - Søren Theilgaard 40

INCOTERMS 2000 FAQ q FOB - What is ship’s rail ? 8 q FOB - Passing of Risk in case of transshipment 8 q FOB Helsingborg. Truck to Hamburg. - Wrong use of FOB Incoterms. FOB Airport destination Japan ? 8 24 March 2004 FOB Helsingborg, transshipment to Ocean Vessel in Hamburg. Delivery and Passing of Risk at Helsingborg. FOB - Pre Transportation ? 8 q Shall be understood literally - subject to interpretation Air forwarder receives goods at Danish airport, carries goods to Frankfurt. Accident on the road. Who carries risk ? - Not an approved Incoterms. INCOTERMS 2000 - Søren Theilgaard 41

INCOTERMS 2000 FAQ q FOB - Does Seller have the obligation to ensure that Goods are Stowed / Trimmed ? 8 8 24 March 2004 Only where agreed to - (Handling after delivery) FOB Rotterdam Incoterms 2000 Stowed and Trimmed is merely a cost clause and does not change delivery or passing of risk. INCOTERMS 2000 - Søren Theilgaard 42

INCOTERMS 2000 FAQ q Place of Delivery ? Seller’s place or when Seller is handing over the goods: 8 8 At Seller’s: At Carrier’s: EXW FCA, FAS, FOB, CFR, CIF, CPT, CIP Buyer’s place or Buyer’s carrier: 8 8 8 q DES, DEQ DAF DDU, DDP Specifying point at the named place of delivery ? 8 24 March 2004 Port of Destination: At Border: At Buyer’s: Seller’s interest. We pays costs and carries risk until that point. - Right to elect point within named place. INCOTERMS 2000 - Søren Theilgaard 43

INCOTERMS 2000 FAQ q Place of delivery in EXW-Clause EXW agreed, but Seller contracts on behalf of Buyer for transportation and insurance and invoices EXW-price + freight and insurance. Invoice reads: CIF Port of destination. Freight and insurance prepaid. Are the two Clauses identical ? - Cost and freight ? - Risk ? EXW Amsterdam, to be shipped to Buyer’s address Sacramento CA arrival 20 April 2004. Where does delivery take place ? - Cost / Risk ? - Delay ? 24 March 2004 INCOTERMS 2000 - Søren Theilgaard 44

INCOTERMS 2000 FAQ q Place of delivery in C-Clauses CIP Johannesburg by air from Frankfurt. Goods are lost after storage with Air Carrier in Johannesburg before handed over to buyer. 8 8 8 Where must the goods be delivered ? - Johannesburg Airport ? - At Buyer’s in Johannesburg area ? (Choice of destination) Who carries risk for the loss in Johannesburg ? Where does delivery take place ? CIP Durban (SA) or DDU Durban (SA). Costs until place of destination ? - Buyer pays transit costs and possible unloading costs according to CIP ? Place of delivery and passing of risk ? 24 March 2004 INCOTERMS 2000 - Søren Theilgaard 45

INCOTERMS 2000 FAQ q Place of delivery in D-Clauses DDU Buyer’s place by air from New York to Paris. Buyer has 3 different places of business in France, which is reported to Seller only after contract is executed. 8 8 8 Where must goods be handed over ? - Paris Airport ? - With Buyer in France, 1 point or 3 different points ? - Costs by delivering 3 places instead of 1 ? Who carries risk of goods being lost in Paris ? Where does delivery take place ? DDP Hong Kong by Air. Delivery at air carrier’s warehouse or at buyer’s ? (Choice of place of delivery) 24 March 2004 INCOTERMS 2000 - Søren Theilgaard 46

INCOTERMS 2000 FAQ q Eksport Clearance 8 q Import Clearance 8 q Seller, except in EXW Buyer, except in DDP Transit Clearance 8 8 24 March 2004 Seller until delivery, thereafter Buyer. Costs in transit, including permissions in C-Clauses must also be paid by Buyer, cf. Item B 6, 2. part. - unless transit costs are included in the cost of carriage that Seller shall pay. INCOTERMS 2000 - Søren Theilgaard 47

INCOTERMS 2000 FAQ q Passing of Property in Scandinavian Law 8 Protection against Seller’s creditors when contract has been made and the goods have been duly appropriated to buyer. - Swedish Law: - goods have arrived in Buyer’s possession 8 Protection against Buyer’s creditor when goods have arrived in Buyer’s possession 8 Not important whether or not goods have been delivered or who carries the risk. q Not settled in INCOTERMS q Other jurisdictions may view this issue differently 8 8 24 March 2004 Matter of contract. Subject to bankruptcy rules. INCOTERMS 2000 - Søren Theilgaard 48

INCOTERMS 2000 FAQ q CFR - Loading- and unloading costs 8 Seller pays loading costs. 8 Unloading costs ? - see B 6, 3. part g costs of loading, including lighterage and wharfage charges, unless such costs and charges were for the Seller’s account under the contract of carriage; 8 8 24 March 2004 ”Liner Terms” imply that the vessel takes care of both loading and unloading and is reimbursed therefore as part of the cost of carriage. ”Tramp Terms” or specific agreement of ”free in/free out” implies that the carrier does not take care of loading and/or unloading as part of the cost of carriage, e. g. - Seller pays for loading - Buyer pays for unloading INCOTERMS 2000 - Søren Theilgaard 49

INCOTERMS 2000 FAQ q Unloading costs in D-Clauses 8 DAF, DDU and DDP Buyer pays unloading costs at destination 8 DES Buyer pays unloading costs 8 DEQ Seller pays unloading costs (Seller pays transit costs until this place) 24 March 2004 INCOTERMS 2000 - Søren Theilgaard 50

INCOTERMS 2000 FAQ q Wharfage The charges paid to the port by the vessel for berthing and laytime at quay. 8 Port of departure - FAS and FOB Buyer - CFR, CIF, DES and DEQ Seller - FCA transport by sea Buyer - Other C- and D-Clauses by sea Seller until named place 8 Port of destination - FAS and FOB - CFR, CIF - DES og DEQ - FCA transport by sea - Other C- and D-Clauses by sea 24 March 2004 Buyer Seller, if wharfage is part of the cost of carriage, otherwise Buyer Seller until named place INCOTERMS 2000 - Søren Theilgaard 51

INCOTERMS 2000 FAQ q CIF - What is the meaning of CIF-Landed ? 8 Not an authentic Incoterms Clause. 8 May imply that Seller must contract vessel on Liner Terms. 8 May imply that the parties intended to contract according to the DEQ Clause. q CIF - Duties and taxes (except export) 8 Buyer’s costs since they are not part of the cost of carriage. q CIP - Named place Dallas, delivery Copenhagen 8 24 March 2004 Sea transport to Houston, unloading and transshipment to haulage by vehicle to Dallas. - Irrespective how contract is made with Carrier Seller must pay unloading costs since this part of the costs accrue before named place (Dallas). INCOTERMS 2000 - Søren Theilgaard 52

INCOTERMS 2000 FAQ q CFR - Delivery and contract of carriage -CFR Rotterdam, shipment from New York. Seller instructs carrier to unload at Le Havre to haul goods by land to Rotterdam. 8 Is carrier entitled to change place of discharge ? 8 What happens if goods do not arrive on time in Rotterdam. 8 Additional costs by transshipment at Le Havre and land transport. 8 Risk of damage during land transportation. q CFR - Risk attached to the goods ? 8 24 March 2004 Buyer claims that goods are not according to contract by arrival but transport documents have no note that this should be the case upon delivery. - Clam against Seller or Carrier ? - Cashing documents (Documentary Credit) INCOTERMS 2000 - Søren Theilgaard 53

INCOTERMS 2000 FAQ q CIF - Damage during transportation Covered by insurance. Seller delivers again for own account and reports damage to insurance company. Carrier responsible for the damage. - Insurance claim - Insurance company recourse - Carrier responsibility Relationship between Seller and Buyer - Insurance control q CIF - Defect before passing of risk - Buyer rescinds contract Purchase price already paid ? (Documentary Credit) Who ”owns” the goods ? Who must tend to the goods ? Return / Auction Sale 24 March 2004 INCOTERMS 2000 - Søren Theilgaard 54

INCOTERMS 2000 FAQ q DDU - Costs Seller pays ” all costs relating to the goods until such time as they have been delivered in accordance with A 4; and costs of customs formalities necessary for export as well as all duties, taxes and other charges payable upon export and for their transit through any country prior to delivery in accordance with A 4. ” 8 8 8 Health certificate in port of destination ? Seller pays until delivery. Wharfage ? Seller Returning Seller’s packing material (pallets, container) - Buyer must pay his own costs to empty pallets / container Buyer pays ”costs of customs formalities as well as all duties, taxes and other charges payable upon import of the goods. ” 24 March 2004 INCOTERMS 2000 - Søren Theilgaard 55

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SLUT 24 March 2004 INCOTERMS 2000 - Søren Theilgaard 58