HOW TO USE THE INCOTERMS 2010 RULES
1. Incorporate the Incoterms 2010 rules into your contract of sales
If you want the Incoterms 2010 rules to apply to your contract, you should make this clear in the contract, through such worlds as,” [ the chosen Incoterms rule including the named place, followed by] Incoterms 2010.
2. Choose the appropriate Incoterms rule
The chosen Incoterms rule needs to be appropriate to the goods, to the means of their transport, and above all to whether the parties intend to put additional obligations, foe example such as the obligation to organize carriage or insurance, on the seller or on the buyer The Guidance Note to each Incoterms rule contains information that is particularly helpful when making this choice. Whichever Incoterms rule is chose, the partiers should be aware that the interpretation of their contract may well be influenced by customs particular to the port or place being used.
3. Specify your place or port as precisely as possible
The chosen Incoterms rule canwork only if the parties name a place or port, and will work best if the parties specify the place or port as precisely as possible.
A good example of such precision would be:
“FCA 38 Cours Albert 1 er, Paris, France Incoterms 2010”
Under the Incoterms rules Ex Works (EXW), Free Carrier (FCA), Delivered at Terminal (DAT, Delivered at place (DAP), Delivered Duty Paid (DDP), Free Alongside Ship (FAS), and Free On Board (FOB), the named place is the place where delivery takes place and where risk passes from the sellers to the buyers. Under the Incoterms rules Carriages Paid to (CPT), Carriage and Insurance paid to (CIP, Cost and Freight (CFR) and Cost, Insurance and Freight (CIF), the named pale differs from the place of delivery. Under these four Incoterms rules, the named place is the place of destination to which carriage is paid. Indications as to place or destination can helpfully be further specified by stating a precise point in that place or destination in order to avoid doubt or argument.
4. Remember that Incoterms rules do not give you a complete Contract of sale
Incoterm rules do say which party to the sale contract has the obligation to make carriage of insurance arrangements, when the seller delivers the goods to the buyer, and which costs each part is responsible for. Incoterms rules, however, say nothing about the price to be paid or the method of its payments. Neither do they deal with the transfer ownership of the goods, or the consequences of a breach of contract. These matters are normally dealt with through express terms in the contract of sale or in the law governing that contract. The parties should be aware that mandatory local law may override any aspect of the sale contract, including the chosen Incoterms rule.
MAIN FEATURES OF THE INCOTERMS 2010 RULES
1. Two new Incoterms rules – DAT and DAP – have replaced the Incoterms 2000 rules DAF, DES, DEQ and DDU
The number of Incoterms rules has been reduced from 13 to 11. This has been achieved by substituting two news rules that be used irrespective of the agrees mode of transportation – DAT, delivered at Terminal, and DAY, delivered at Place – for the Incoterms 2000 rules DAF, DES, DEQ and DDU.
Under both new rules, delivery occurs at a named destination: in DAT, at the buyer’s disposal unloaded from the arriving vehicle (as under the former DEQ rule); in DAP likewise at the buyer’s disposal, but ready for unloading (as under the former DAF, DES, and DDU rules)
The new rules make the Incoterms 200 rules DES and DEQ superfluous. The named terminal in DAT may well be in a port, and DAT can therefore safely be used in cases where the Incoterms 2000 rules DEQ once was. Likewise, the arriving “vehicle” under DAP may well be a ship and the named place of destination may well be a port: consequently, DAY can safely be used in cases where the Incoterms 2000 rules DES once was. These new rules, like their predecessors, are “delivered” with the sellers bearing all the costs (other than those related to import clearance, where applicable) and risks involved in bringing the goods to the named place of destination.
2. Classification of the 11 Incoterms 2010 rules
The 11 Incoterms 2010 rules are presented in two distinct classes.
RULES FOR ANYMODE OR MODES OF TRANSPORT
EXW EX WORKS
FCA FREE CARRIER
CPT CARRIAGE PAID TO
CIP CARRIAGE AND INSURANCE PAID TO
DAT DELIVERED AT TERMINAL
DAP DELIVERED AT PLACE
DDP DELIVERED DUTY PAID
RULES FOE SEA AND INLAND WATERWAY TRANSPORTATION
FAS FREE ALONGSIDE SHIP
FOB FREE ON BOARD
CFR COST AND FREIGHT
CIF COST INSURANCE AND FREIGHT
The first class includes the seven Incoterms 2010 rules that can be used irrespective of the mode of transportation selected and irrespective of whether one or more than one mode of transport is employed. EXW, FCA, CPT, CIP, DAT, DAP and DDP belong to this class. They can be used even when there is no maritime transport at all. It is important to remember, however, that these rules can be used in cases where a ship is used for part of the carriage.
In the second class of Incoterms 2010 rules, the point of delivery and the place to which the goods are carried to the buyer are both port, hence the label “ sea and inland waterway” rules. FAS, FOB, CFR and CIF belong to this class. Under the last there Incoterms rules, all mention of the ship’s rail as the point of delivery has been omitted in preference for the goods being delivered when they are “on board” the vessel. This more closely reflects modern commercial reality and avoids the rather dated image of the risk swinging to and fro across an imaginary perpendicular line.
3. Rules for domestic and International trade
Incoterms rules have traditionally been used in international sale contract when goods pass across national borders. In various areas of the world, however, trade blocs, like the European Union, have made border formalities between different countries less significant. Consequently, the subtitle of the Incoterms 2010 rules formally recognizes that they are available for application to both international and domestic sale contract. As a result, the Incoterms 2010 rules clearly state in a number of places that the obligation to comply with export/import formalities exists only where applicable.
Two developments have persuaded ICC that a movement in this direction is timely. Firstly, traders commonly use Incoterms rules for purely domestic sales contracts. This second reason is the greater willingness in the United States to use Incoterms rules in domestic trade rather than the former Uniform Commercial Code shipment and delivery terms
4. Guidance Notes
Before each Incoterms 2010 rule you will find a Guidance Note. The Guidance Note explain the fundamentals of each Incoterms rules, such as when it should be used, when risk passes, and how costs are allocated between seller and buyer . The Guidance Notes are not part of the actual Incoterms 2010 rules, but are intended to help the user accurately and efficiently steer towards the appropriate Incoterms ruke for a particular transaction.
5. Electronic communications
Previous version of Incoterms rules have specified those documents that could be replaced by EDI messages. Articles A1/B1 of the Incoterms 2010 rules , however, now give electronic means of communication the same affect as paper communication, as long as the parties so agree or where customary. This formulation facilitates the evolution of new electronic procedures throughout the lifetime of the Incoterms 2010 rules.
6. Insurance cover
The Incoterms 2010 rules are the first version of the Incoterms rules since the revision of the Institute Cargo Clauses and take account of alterations made to those clauses. The Incoterms 2010 rules place information duties relating to insurance in articles A3/B3, which deal with contract of carriage and insurance. These provisions have been moved from the more generic articles found in articles A10/B10 of the Incoterms 2000 rules. The language in article A3/B3 relation to insurance has also been altered with a view to clarifying the parties’ obligations in this regard.
7. Security-related clearances and information required for such clearances
There is heightened concern nowadays about security in the movement of goods, requiring verification that the goods do not pose a threat to life or property for reasons other than their inherent nature. Therefore, the Incoterms 2010 rules have allocated obligations between the buyers and the seller to obtain or to render assistance in obtaining securities-related clearances, such as chain-of –custody information, in articles A2/B2 and A10/B10 of various Incoterms rules.
8. Terminal handling charges
Under Incoterms rules CPT, CIP, CFR, CIF, DAT, DAP and DDP, the seller must make arrangements for the carriage of the goods to the agreed destination. While the freight is paid by the seller, it is actually paid for by the buyer as freight costs are normally included by the seller in the total selling price. The carriage costs will sometimes include the costs of handling and moving the goods within port or container terminal facilities and the carrier or terminal operator may well charge these cost to the buyer who receives the goods. In these circumstances, the buyer will want to avoid paying for the same service twice: once to the seller as part of the total selling price and once independently to the carrier or the terminal operator. The Incoterms 2010 rules seek to avoid this happening by clearly allocating such costs in articles A6/ B6 of the relevant Incoterms rules.
9. String sales
In the sale of commodities, as opposed to the sale of manufactured goods, cargo is frequently sold several times during transit “down a string”. When this happens, a seller in the middle of the string does not “ship” the goods because these have already been shipped by the first seller in the string. The seller in the middle of the string therefore performs its obligation towards its buyer not by shipping the goods, but by “procuring” goods that have been shipped. For clarification purposes, Incoterms 2010 rules include the obligation to “procure goods shipped” as an alternative to the obligation to ship goods in the relevant Incoterms rules.
Variants of Incoterms rules
Sometimes the parties want to alter an Incoterms rule. The Incoterms 2010 rules do not prohibit such alternation, but there are dangers in so doing. In order to avoid any unwelcome surprises, the parties would need to make the intended effect of such alternations extremely clear in theirs contract. Thus, for example, if the allocation of costs in the Incoterms 2010 rules is alternated in the contract, the parties should also clearly state whether they intend to vary the point at which the risk passes from seller to buyer.