I. Introduction.

Merchants by tradition use shorthand expressions to describe their respective obligations connected with the carriage of goods under international contracts of sale. This practice - important and rational as it may be - involves serious risks of misunderstanding. Ever since 1936, the International Chamber of Commerce (ICC) has provided rules of interpretation for the most important trade terms used by merchants in international trade, thereby greatly contributing to trade facilitation. These ICC terms are usually just referred to as INCOTERMS. Indeed, trade terms constitute the most important element of the international contract of sale, since they purport to tell the contracting parties what to do, and thereby provide an indispensable tool for the implementation of their contract. Below is a description and discussion of the INCOTERMS commonly encountered in international trade contracts.

II. Shipping Terms.

The four most commonly used shipping terms in international trade are:

Each term imposes specific duties and rights on the parties. The parties have the option of specifying in the contract the exact obligations to be imposed on them, or they may use the shipping term as a shorthand designation of their agreed upon duties and rights.

The parties should always specify which body of law they wish to have govern the interpretation of their shipping terms. For international transactions, the parties should specify that the shipping terms are to be interpreted according to INCOTERMS 1990. Thus, in the event of a dispute, the terms will be interpreted as the parties intended and not according to local law or usage.

These four terms are described below along with the major duties imposed under INCOTERMS 1990.

A. F.A.S.

F.A.S. stands for "Free Alongside Ship" and is used in conjunction with a named port of shipment. The seller's obligation to deliver is fulfilled when the goods have been placed alongside the vessel at the named port of shipment. From that moment, the buyer bears all costs and risks of loss of, or damage to, the goods. As its name implies, this term can only be used for sea or inland waterway transport.

Under F.A.S., the seller's main obligations are to:

The buyer's obligations under the F.A.S. term include the following:

  1. Clear the goods for export. This involves obtaining the necessary export and import licenses or authorizations and whatever other customs formalities are required. It, therefore, should not be used if the buyer is unable to carry out the export formalities.

  2. Contract at his own expense for the carriage of the goods from the named port of shipment.

  3. Bear all risks of loss of or damage to the goods from the time seller has fulfilled his delivery obligations. If the buyer fails to meet his obligations with regard to clearing the goods for export, he bears all additional risks of loss of or damage to the goods that result. If the buyer fails to give the seller sufficient notice of the vessel name, loading place, and required delivery time, or if the vessel he has named does not arrive on time or is unable to take the goods, he bears all risks of loss of or damage to the goods from the agreed date of delivery.

  4. Pay all costs relating to the goods from the moment the seller has delivered the goods alongside the named vessel. Buyer must pay any additional costs incurred either because the vessel it named has not arrived on time or is unable to take the goods, or because the buyer has not met his obligations to obtain the necessary import and export authorizations.

B. F.O.B.

F.O.B. stands for "Free On Board" and means that the seller fulfills his obligation to deliver when the goods have passed over the ship's rail at the named port of shipment. Thus, the transfer of risk is as follows: the seller bears all risk of loss of, or damage to, the goods until they have passed the ship's rail at the named port of shipment; and the buyer bears all costs and risk of loss of, or damage to, the goods from that point. As with F.A.S., if the buyer fails to give sufficient notice to the seller of the vessel name, loading point, and required delivery time, or if the vessel named by him does not arrive on time or is unable to take the goods, he bears all risk of loss of, or damage to, the goods from the agreed date of delivery, provided they have been clearly set aside and identified as the contract goods. As with F.A.S., F.O.B. is used in conjunction with a named port of shipment and can only be used for sea or inland waterway transport.

In contrast to F.A.S., the F.O.B. term requires the seller to clear the goods for export. This still leaves the burden on the buyer to carry out all customs formalities necessary for the importation of the goods.

C. C. & F.

Under C. & F., the seller must pay all 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 the goods have been delivered on board the vessel, is transferred from the seller to the buyer when the goods pass the ship's rail in the port of shipment. Again, this term can only be used for sea and inland waterway transport.

The seller is required to:

The buyer bears the risk of loss of, or damage to, the goods from the time they have passed the ship's rail at the port of shipment. If the buyer fails to give the seller sufficient notice of the time for shipping and/or the port of destination, he bears the risk of loss of, or damage to, the goods from the agreed date of shipment. The buyer pays all costs relating to the goods from the time they have been delivered in accordance with the contract. He must carry out all customs formalities for the importation of the goods and bear the associated costs.

D. C.I.F.

C.I.F. stands for "Cost, Insurance, and Freight." The seller's obligations are the same as under C. & F., but with the additional obligation of procuring marine insurance against the buyer's risk of loss of, or damage to, the goods during the carriage. The seller arranges for the insurance and pays the insurance premium. The buyer should be aware that under the C.I.F. term, the seller is only required to obtain the minimum insurance coverage, so the buyer may wish to purchase additional coverage. Again, this term can only be used for sea and inland waterway transport.

More specifically, the seller is required to:

The buyer shall bear all risks of loss of, or damage to, the goods from the time they have passed the ship's rail at the port of shipment. If the buyer fails to give sufficient notice to the seller of the time of delivery or the port of destination, he shall bear all risks of loss or damage from the agreed date of shipment.

The buyer shall pay all costs relating to the goods from the time they have been delivered at the port of shipment on the agreed date. The buyer must pay all duties, taxes, and other official charges, as well as the costs of carrying out customs formalities payable upon importation of the goods.

E. Glossary of Other Shipping Terms

Brief descriptions of other shipping terms that an international trader may encounter are provided below. Each of these terms imposes different duties and rights on the parties.

1. F.C.A. - Free Carrier (...named place)

The seller has fulfilled his obligation to deliver when he has cleared the goods for export and has handed them over into the charge of the carrier named by the buyer at the named place or point. If a precise point is not indicated by the buyer, seller may choose where the carrier will take the goods into his charge so long as it is within the stipulated place or range. This term may be used for any mode of transport, including multimodal transport.

2. E.X.W. - Ex Works (...named place)

The seller's duty to deliver is met when he has made the goods available at his premises (i.e. factory, warehouse, etc.) to the buyer. This means that he is not responsible for loading the goods onto the vehicle provided by the buyer or for clearing the goods for export, unless otherwise agreed. The buyer bears all the costs and risks involved in taking the goods from the seller's premises to the desired destination. This term represents the minimum obligation for the seller. It should not be used when the buyer cannot carry out directly or indirectly the export formalities.

3. C.P.T. - Carriage Paid To (...named place of destination)

C.P.T. requires the seller to pay the freight for the carriage of the goods to the named destination. The risk of loss of, or damage to, the goods, plus any additional costs due to events occurring after the time the goods have been delivered to the carrier, is transferred from the seller to the buyer when the goods have been delivered into the carrier's custody.

4. C.I.P. - Carriage and Insurance Paid To (...named place of destination)

The seller's obligations are the same as under C.P.T., but with the additional duty of procuring cargo insurance against the buyer's risk of loss of, or damage to, the goods during the carriage. The seller contracts for the insurance and pays the premium. This term may be used for any mode of transport.

5. D.A.F. - Delivered at Frontier (...named place)

The seller has met his duty to deliver when he has cleared the goods for export and has made them available at the named point and place at the frontier, but before the customs border of the adjoining country. The term "frontier" may be used for any frontier including that of the country of export. While the term may be used for any mode of transport, it is primarily intended to be used when goods are to be carried by rail or road.

6. D.E.S. - Delivered Ex Ship (...named port of destination)

The seller's duty to deliver is met when the goods are made available to the buyer on board the ship at the named port of destination, although uncleared for import. The seller bears all the costs and risks involved with bringing the goods to the named port of destination. This term can only be used for sea or inland waterway transport.

7. D.E.Q. - Delivered Ex Quay (Duty Paid) (...named port of destination)

When the seller has made the good available to the buyer on the quay (wharf) at the named port of destination, cleared for importation, he has met his duty to deliver. He bears all risks and costs including duties, taxes, and other official charges of delivering the goods thereto. If the parties wish the buyer instead of the seller to clear the goods for importation and pay the duty, the words "duty unpaid" should be used instead of "duty paid." The parties can also exclude from the seller's obligations some of the costs payable upon importation of the goods, such as value-added tax (VAT). This should be made clear by adding words to this effect: "Delivered ex quay, VAT unpaid, (...named port of destination)." This term can only be used for sea or inland waterway transport.

8. D.D.U. - Delivered Duty Unpaid (...named place of destination)

When the goods have been made available at the named place in the country of importation, the seller's duty to deliver is fulfilled. The seller bears the cost and risks incurred in bringing the goods to that point, but is not responsible for duties, taxes, and other charges payable upon importation, as well as the costs and of carrying out customs formalities. If the buyer fails to clear the goods for import in time, he pays any additional costs and bears any risks that result. If the parties wish to include in the seller's obligations some of the costs payable upon importation of the goods, such as value-added tax (VAT), this should be made clear by adding words, such as, "Delivered duty unpaid, VAT paid, (...named place of destination)." This term may be used with any mode of transport.

9. D.D.P. - Delivered Duty Paid (...named place of destination)

The seller has completed his duty to deliver when the goods have been made available at the named place in the country of importation. The seller bears all risks and costs, including duties, taxes, and other charges of delivering the goods to that point and from clearing them for importation. While the E.X.W. term represents the minimum obligation for the seller, the D.D.P. term represents the maximum obligation. If the parties wish the buyer to clear the goods for importation and to pay the duty, the term D.D.U. should be used. If the parties wish to exclude from the seller's obligations some of the costs payable upon importation of the goods, such as value-added tax (VAT), this should be made clear by adding words such as: "Delivered duty paid, VAT unpaid (...named place of destination)." This term may be used in conjunction with any mode of transport.

III. Conclusion

Sending goods from one country to another as part of a commercial transaction can be a risky business. If they are lost or damaged, or if delivery does not take place for some other reason, the climate of confidence between parties may degenerate to the point where a lawsuit is brought. However, above all, sellers and buyers in international contracts want their deals to be successfully completed. If, when drawing up their contract, buyer and seller specifically refer to one of the ICC Incoterms discussed above, they can be sure of defining their respective responsibilities, simply and safely. In so doing, they significantly decrease any possibility of misunderstanding and subsequent dispute.