INCOTERMS 2000 专家问答(一)

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INCOTERMS 2000 专家问答(一)

前言:《国际贸易术语解释通则》(以下称Incoterms)的宗旨是为国际贸易中最普遍使用的贸易术语提供一套解释的国际规则,以避免因各国不同解释而出现的不确定性,或至少在相当程度上减少这种不确定性。

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Incoterms 现行版本是Incoterms 2000,与Incoterms 1990相比看上去变化很小。原因很明显,即Incoterms当前已得到世界承认,所以ICC决定巩固Incoterms在世界范围内得到的承认,并避免为了变化而变化。另一方面,在修订过程中,ICC尽量保证Incoterms 2000中的语言清楚准确地反映出国际贸易实务。无论是实质变化还是形式变化都是在对Incoterms的使用者广泛调查的基础上作出的,而且对1990年以来Incoterms专家小组(专门为Incoterms使用者提供额外服务的机构)收到的咨询意见给予了充分考虑。本文即ICC Incoterms专家小组就《Incoterms 2000》中的一些问题给予的解释与回答。希望此文能对业内人士更好地理解《Incoterms 2000》有所帮助。

1 - CFR

Could the delay in receiving the documents by the buyer be considered as a delay in taking delivery of the goods because of the delay receiving the documents?

Query:
“In a CFR contract, can we consider the delay in receiving the documents by the buyer, as a delay in taking delivery of the goods clearance of the goods delayed (sic) because of the delay receiving the documents?”.

Response:
“There is no provision as such in Incoterm CFR. However, Article A8 states that "The seller [...] must provide the buyer without delay with the usual transport document [...]. This document [...] must [...] enable the buyer to claim the goods from the carrier at the port of destination [...]”.

2 - FAS

Payment of costs handling or manipulations.

Query:
“… in Incoterm 2000 FAS, who - seller or buyer - has to pay the costs of "manipulation" or "handling". According to A4 (FAS),"the seller must place the goods alongside the vessel nominated by the buyer at the loading place named by the buyer", and A6 tells us that the seller must pay all costs relating to the goods until such time as they have been delivered in accordance with A4.

It is clear that the seller has to pay the cost of unloading the truck and of placing the goods next to the ship, even if this is a very brief trip. But what happens if there are some meters between the place where the seller leave the goods and the point where they can be taken for the ship? Who has to pay that cost? Point 11 of the Introduction to Incoterms 2000 mentions that "distribution of costs under such terms ("liner terms" and "terminal handling charges") may differ in different places and change from time to time" so that parties are advised to clarify it in the contract. In case this doubt does not fit within those two categories of "liner terms" and "terminal handling charges", I wonder if it could be included in any future agenda of any group of experts that might be created to discuss doubts on Incoterms 2000".

Response:
“FAS and costs of handling at the port of loading
In short:
· it is not known why goods have to be handled
· if due to buyer's failure to name the place of loading > buyer
· if due to ship's inability to use named place > buyer
· if because of terminal operations or other process where goods are "preloaded" > FAS is not proper term.

And the same in a somewhat longer form:

The question
The inquirer wants to know who pays the costs of operations when goods have to be moved on the quay or in the port area after the seller has brought goods to the port but before they can be lifted on board the vessel. The question is rather general, and the answer must also therefore necessarily be on a general level.

Some relevant obligations
According to the wording of FAS Incoterms 2000, article A4, "the seller must place the goods alongside the vessel … at the loading place named by the buyer at the named port of shipment … in the manner customary at the port".
In article B7 the buyer is obliged to advise the seller about the name of vessel and loading point.

Basic nature and background of FAS
As a custom of trade, FAS represents the era of sailing ships,
at a time when seller placed commodities on the quay to wait for buyer who came later at a loosely defined time to load the goods. The buyer could maximize the utilization of his ship's

capacity.
An imaginative example a century ago: the seller brought timber during winter on the quay to wait for the buyer, who had announced that on the first convenient occasion (e.g. FOW, first open water) he will come with his ship to collect the goods. The buyer came with his vessel, loaded the goods that had been waiting for him on the quay on board his vessel in the best possible way and sailed away

Background of question
The inquiry does not mention why the goods had to be transferred at the port. Was it because
- the buyer had failed to name the place of loading, or
- the vessel could not load the goods from the named place of loading at the port, or
- the transfer of goods was part of the loading operation?

Failure to nominate the place of loading
If the buyer fails to give appropriate notice as requested in B7, then according to B5 and B6 he bears the risks and costs after the expiry of delivery time - provided that the goods have been duly appropriated etc.
The question: in case of buyer's failure, does the seller have the right to choose that place at the port where he sets goods clearly aside?

Inability to load from the named place
The seller has fulfilled his obligations by placing the goods at the named place of loading.

FAS and terminal traffic
In modern times, terminal traffic is used in order to minimize the time the vessel uses at the port of loading/discharge. This means that a part of the loading operations has been transferred to take place at the port terminal, prior to actual arrival of the vessel. As a part of loading operations cargo may be unitised or placed on a flat for a swift transfer on board later, after the vessel has arrived. Such operations usually take place before vessel has arrived, in other words before vessel is "alongside".
FAS cannot be used when, because of the nature of loading process, the seller cannot place cargo alongside the vessel.
If we stress the words "… alongside the vessel…", it means that in the terminal traffic the seller would have to operate on the area which actually is within the contract of carriage concluded by the buyer.
If the stress is on the words "… loading place…" and we accept that the loading of the ship actually begins at the terminal, perhaps several hundred meters from "alongside the ship", this is against the basic nature of this term. This problem recalls an earlier interpretation of FAS: that the risk cannot transfer and
costs cannot be divided before the vessel has arrived "alongside".

Custom of the port
The wording of article A4 refers also to "manner customary at the port". The seller should place the goods alongside the vessel in a customary manner. In other words, the way of placing the goods can be customary, but custom of the port may not be contradictory to the placing of goods ".


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