《2000年国际贸易术语解释通则》－－INTRODUCTION（二）（英文版）

INTRODUCTION
9. THE TERMS
9.1. The "E"; term is the term in which the seller''s obligation is at its mini mum: the seller has to do no more than place the goods at the disposal of the buyer at the agreed place; usually at the seller''s own premises. On the other hand, as a matter of practical reality, the seller would frequently assist the buyer m loading the goods on the latter''s collecting vehicle. Although EXW would better reflect this if the seller''s obligations were to be extended so as to include loading, it was thought desirable to retain the traditional principle of the seller''s minimum obligation under EXW so that it mild he used for cases where the seller does not wish to assume any obligation whatsoever with respect to the loading of the goods. If the buyer wants the seller to do more, this should he made clear in the contract of sale.
9.2. The "F"; term require the seller to deliver the goods for carriage as instructed by the buyer. The point at which the parties intend delivery to occur in the FCA term has caused difficulty because of the wide variety of circumstances which may surround contracts covered by this term. Thus, the goods may be loaded on a collecting vehicle sent by the buyer to pick them up at the seller''s premises; alternatively, the goods may need to he unloaded from a vehicle sent by the seller to deliver the goods at a terminal named by the buyer. Incoterms 2000 take amount of these alternatives by stipulating that, when the place named in the contract as the placed of delivery is the seller''s premises, delivery is complete when the goods are loaded on the buyer''s collecting vehicle and, in other cases, delivery is complete when the goods are placed at the disposal of the buyer not unloaded from the seller''s vehicle. The variations mentioned for different modes of ~port in FCA A4 of Incoterms 1990 are not repeated in Incoterms 2000.
The delivery point under FOB, which is the same under CFR and CIF, has been left unchanged in Incoterms 2000 in spite of a considerable debate. Although the notion under FOB to deliver the goods " across the ship''s rail nowadays may seem inappropriate in many cases, it is nevertheless understood by merchants and applied in a manner which takes .account of the goods and the available loading facilities. It was felt that a change of the FOB ; point would create unnecessary confusion, particularly with respect to sale of commodities carried by sea typically under charter parties.
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.
There is an important change of FAS relating to the obligation to clear the goods for export, since it appears to be the most common practice to put this duty on the seller rather than on the buyer. In order to ensure that this change is duly noted it has been marked with capital letters in the preamble of FAS.
9.3.The ''C"; terms require the seller to contract for carriage on usual terms at his own expense. 7herefore, a point up to which he would have to pay ~Port costs must necessarily be indicated after the respective "C" term. Under the CIF and CIP terms the seller also has to take out insurance and bear the insurance cost. Since the point for the division of costs is fixed at a point in the country of destination, the "C"; terms are frequently mistakenly believed to he arrival contracts, in which the seller would bear all risks and costs until the goods have actually arrived at the a~ point. However, it must he stressed that the "C"; terms are of the same nature as the "F"; terms in that the seller fulfils the contract in the country of shipment or dispatch. Thus, the contracts of sale under the "C" - terms, like the contracts under the "F''; terms, fall within the category of shipment contracts.
It is in the nature of shipment contracts that, while the seller is bound to pay the normal transport cost for the carriage of the goods by a usual route and in a customary manner to the agreed place, the risk of loss of or damage to the goods, as well as additional costs resulting from events occurring after the goods having been appropriately delivered for carriage, fall upon the buyer.
Hence, the "C"; terms are distinguishable from all other terms in that they contain two "critical" points, one indicating the point to which the seller is bound to arrange and bear the costs of a contract of carriage and another one for the allocation of risk. For this reason, the greatest caution must be observed when adding obligations of the seller to the "C"; terms which seek to extend the seller''s responsibility beyond the aforementioned "critical" point for the allocation of risk. It is of the very essence of the "C"; terms that the seller is relieved of any further risk and cost after he has duly fulfilled his contract by contracting for carriage arid handing over the goods to the carrier and by providing for insurance under the CIF; and CIP; terms.
The essential nature of the "C"; terms as shipment contracts is also illustrated by the common use of documentary credits as the preferred mode of payment used in such terms. Where it is agreed by the parties to the sale contract that the seller will he paid by presenting the agreed shipping documents to a bank under a documentary credit, it would he quite contrary to the central purpose of the documentary credit for the seller to bear further risks and costs after the moment when payment had been made under documentary credits or otherwise upon shipment and dispatch of the goods. Of course, the seller would have to bear the cost of the contract of carriage irrespective of whether freight is pie; paid upon shipment or is payable at destination (freight collect); however, additional costs which may result from events occurring subsequent to shipment and dispatch are necessarily for the account of the buyer.
It the seller has to provide a contract of carriage which involves payment of duties, taxes and other charges, such costs will, of course, fan upon the seller to the extent that they are for his account under that contract.
This is now explicitly set forth in the A6 clause of all "C"; terms.
If it is customary to procure several contracts of carriage involving transhipment of the goods at intermediate places in order to reach the agreed destination, the seller would have to pay all these costs, including any costs incurred when the goods are ~hipped from one means of conveyance to the other.
If, however, the carrier exercised his rights under a transhipment; or similar clause; in order to avoid unexpected hindrances (such as ice, congestion, labour disturbances, government orders, war or warlike operations) then any additional cost resulting there from would he for the account of the buyer, since the seller'' s obligation is limited to procuring the usual contract of carriage.
It happens quite often that the parties to the contract of sale wish to clarify the extent to which the seller should procure a contract of carriage including the costs of discharge. Since such costs are normally covered by the freight when the goods are carried by regular shipping lines, the contract of sale will frequently stipulate that the goods are to he so carried or at least that they are to he carried under ''liner terms". In other cases, the word "landed" is added after UR or CIF. However, it is advisable not to use abbreviations added to the "C"; terms unless, in the relevant trade, the meaning of the abbreviations is clearly understood and accepted by the contracting parties or under any applicable law or custom of the trade.
An particular, the seller should not; and indeed could not, without changing the very nature of the "C"; terms ; undertake any obligation with respect to the arrival of the goods at destination, since the risk of any delay during the carriage is borne by the buyer. Thus, any obligation with respect to time must
necessarily refer to the place of shipment or dispatch, for example, " shipment (dispatch) not later than . . . ¡°. An agreement for example, " CFR Hamburg not later than . . . " is really a misnomer and thus open to different possible interpretations. The parties could he taken to have meant either that the goods must actually arrive at Hamburg at the specified date, in which case the contnict is not a shipment contract but an arrival contract or, alternatively, that the seller must ship the goods at such a time that they would normally arrive at Hamburg before the specified date unless the carriage would have been delayed because of unforeseen events.
It happens m commodity trades that goods are brought while they are at sea and that, m such ewes, the word "afloat" is added after the trade term. Since the risk of loss of or damage to the goods would then, under the CFR ; and CIF ; terms, have passed from the seller to the buyer, difficulties of interpretation might arise. One possibility would be to maintain the ordinary meaning of the CFR ; and CIF ; terms with respect to the allocation of risk between seller and buyer, namely that risk passes on shipment: this would mean that the buyer might have to assume the consequences of events having already occurred at the time when the contract of sale enters into force. The other possibility would he to let the passing of the risk coincide with the time when the contract of We is concluded. The former possibility might well be practical, since it is usually impossible to ascertain the condition of the goods while they are being carried.
For this reason the 1980 United Nations Convention on Contracts for the International Sale of Goods article 68 stipulates, "If the circumstances so indicate, the risk is assumed by the buyer from the time the goods were handed over to the carrier who issued the documents embodying the contract of carriage". There is, however, an exception to this rule when "the seller knew or ought to have known that the goods had been lost or damaged and did not disclose this to the buyer". Thus, the interpretation of a CFR ; or CIF term with the addition of the word ¡°afloat¡± will depend upon the law applicable to the contract of sale .The parties are advised to ascertain the applicable law and any solution which might follow there from. In case of doubt, the parties are advised to clarify the matter in their contract.
In practice, the parties frequently continue to use the traditional expression C & F (Or C and F, C + F). Nevertheless, in most cases it would appear that they regard these expressions as equivalent to CFR. In order to avoid difficulties of interpreting their contract the parties should use the correct Incoterm which is CFR, the only world ; wide ; accepted standard abbreviation for the term "Cost and Freight ( ... named port of destination)".
CFR and CIF in A8 of Incoterms 1990 obliged the seller to provide a copy of the charter party whenever his ~port document (usually the bill of Wing) con~ a reference to the charter party, for example, by the frequent notation "all other term and conditions as per charter party". Although, of course, a contracting party should always he able to ascertain all terms of his contract ; preferably at the time of the conclusion of the contract ; it appears that the practice to provide the charter party as aforesaid has created problem particularly in connection with documentary credit transactions. 7he obligation of the seller under CIPR and CIF to provide a copy of the charter party together with other ~port documents has been deleted in Incoterms 2000.
Although the A8 clauses of Incoterms seek to ensure that the seller provides the buyer with "proof of delivery", it should be stressed that the seller fulfils that requirement when he provides the "usual" proof. Under CPT and CIP it would he the "usual ~Port document" and under CFR and CIF a bill of lading or a sea waybill. The ~port documents must he "clean", meaning that they must not contain clauses or notations expressly declaring a defective condition of the goods and/or the packaging. If such clauses or notations appear in the document, it is regarded as " unclean" and would then not he accepted by banks in documentary credit transactions ; However, it should he noted that a ~port document even without such clauses or notations would usually not ~de the buyer with incontrovertible proof as against the earner that the goods were shipped in Conformity with the stipulations of the contract of sale. Usually, the carrier would, in standardized text on the front page of the transport document, refuse to accept responsibility for information with respect to the goods by indicating that the particulars inserted in the ~port document constitute the shipper''s declarations and therefore that the information is only "said to W'' as inserted in the document. Under most applicable laws and principles, the earner must at least use reasonable means of checking the correct~ of the information and his failure to do so may make him liable to the consignee. However, in container trade, the carrier''s merits of checking the contents in the container would not exist unless he himself was responsible for stowing the container.
There are only two terms, which deal with insurance, namely CIF and CIP. Under the term the seller is obliged to procure insurance for the benefit of the buyer. In other cases it is for the parties themselves to decide whether and to what extent they want to cover themselves, by insurance. Since the seller takes out insurance for the benefit of the buyer, he would not know the buyer'' s precise requirements. Under the Institute Cargo Clauses drafted by the Institute of London Underwriters, insurance is available in "minimum cover" under Clause C, "medium cover" under Clause B and "most extended cover" under Clause A. Since in the sale of commodities under the CIF term the buyer may wish to sell the goods in transit to a subsequent buyer who in turn may wish to resell the goods again, it is impossible to know the insurance cover suitable to such subsequent buyers and, therefore, the minimum cover under CIF has traditionally been chosen with the possibility for the buyer to require the seller to take out additional insurance. Minimum cover is however unsuitable for sale of manufactured goods where the risk of theft, pilferage or improper handling or custody of the goods would require more than the cover available under Clause C. Since CIP, as distinguished from CIF, would normally not be used for the sale of commodities, it would have been feasible to adopt the most extended cover under CIP rather than the minimum cover under CIF. But to vary the seller''s insurance obligation under CIF and CIP would lead to confusion and both terms therefore hunt the seller''s insurance obligation to the minimum cover. It is particularly important for the CIP ~ buyer to observe this: should additional cover he required, he should agree with the seller that the latter could take out additional insurance or, alternatively, arrange for extended insurance cover himself. There are also particular insurances where the buyer may wish to obtain even more protection than is available under Institute Clause A, for example insurance against war, riots, civil commotion, strikes or other labour disturbances. If he wishes the seller to arrange such insurance he must instruct him accordingly, in which case the seller would have to provide such insurance if procurable.
9.4. The "D" ; terms are different in nature from the "C" ; terms, since the seller according to the "D" ; terms is responsible for the arrival of the goods at the agreed place or point of destination at the border or within the country of import. The seller must bear all risks and costs in bringing the goods thereto. Hence, the "D" ; terms signify arrival contracts, while the "C" ; terms evidence departure (shipment) contracts.
Under the "D" ; terms except DDP the seller does not have to deliver the goods cleared for import in the country of destination.
Traditionally, the seller had the obligation to clear the goods for import under DEQ, since the goods had to he landed on the quay and thus were brought into the country of import. But owing to changes in customs clearance procedures in most countries, it is now more appropriate that the party domiciled in the country concerned undertakes the clearance and pays the duties and other charges. Thus, a change in DEQ has been made for the same reason as the change in FAS previously mentioned. As in FAS, in DEQ the change has been marked with capital letters in the preamble.
It appears that in many countries trade terms not included m Incoterms am used particularly in railway traffic (¡° Franco border", ¡°Franco ; frontiere", ¡°Frei Granze"). However, under such terms it is normally not intended that the seller should assume the risk of loss of or damage to goods during the transport up to the border. It would be preferable in the circumstances to use CPT indicating the border. If, on the other hand, the parties intend that the seller should bear the risk during the transport DAF indicating the border would be appropriate.
The DDU term was added m the 1990 version of Incoterms. 1he term fulfils, an important function whenever the seller is prepared to deliver the goods m the country of destination without clearing the goods for import and paying the duty. In countries where import clearance may be difficult and time consuming, it may he risky for the seller to undertake an obligation to deliver the goods beyond the customs clearance point. Although, according to DDU B5 and B6, the buyer would have to bear the additional risks and costs which might follow from his failure to fulfil his obligations to clear the goods for import, the seller is advised not to use the DDU term in countries where difficulties might he expected in clearng the goods for import.

10. THE EXPRESSION ''NO OBLIGATION''
As appears from the expressions "the seller must" and "the buyer must Incoterms are only concerned with the obligations which the parties owe to each other. The words “no obligation” have therefore been inserted whenever one party does not owe an obligation to the other party. Thus, if for instance according to A3 of the respective term the seller has to arrange and pay for the contract of carriage we find the words "no obligation" under the heading "contract of carriage" in B3 a) setting forth the buyer''s position. Again, where neither party owe the other an obligation, the words "no obligation" will appear with respect to both parties, for example, with respect to insurance.in either case, it　 is important to Point out that even though one party may he under "no obligation" towards the other to perform a certain task, this does not mean that it is not in his interest to perform that task. Thus, for example, just because a CFR buyer owes his seller no duty to make a contract of insurance under B4, it is clearly in his interest to make such a contract, the seller being under no such obligation to procure insurance cover under A4.

11. VARIANTS OF INCOTERMS
In practice, it frequently happens that the Parties, themselves by adding words to an lncoterm seek further precision than the term could offer. It should be underlined that Incoterms give no guidance whatsoever for such additions. Thus, if the parties cannot rely on a well ‑ established custom of the trade for the interpretation of such additions they may encounter serious problems when no consistent understanding of the additions could be proven.
If for instance the common expressions " FOB stowed " or " EXW loaded " are used, it is impossible to establish a world ‑ wide understanding to the effect that the seller''s obligations am extended not only with respect to the cost of actually loading the goods in the ship or on the vehicle respectively but also include the risk of fortuitous loss of or damage to the goods in the process of stowage and loading. For these reason, the parties are strongly advised to clarify whether they only mean that the function or the cost of the stowage and loading operations should fall upon the seller or whether he should also bear the risk until the stowage and loading has actually been completed. These are questions to which Incoterms do not provide an answer: consequently, if the contract too fails expressly to describe the parties'' intentions, the parties may be put to much unnecessary trouble and cost.
Although Incoterms 2000 do not provide for many of these commonly used variants, the preambles to certain trade term do alert the parties to the need for special contractual term if the parties wish to go beyond the stipulations of Incoterms.
EXWthe added obligation for the seller to load the goods on the buyer's collecting vehicle;
CIF/CIPthe buyer's need for additional insurance;
DEQthe added obligation for the seller to pay for costs after discharge.

In some cases sellers and buyers refer to commercial practice in liner and charter party trade. In these circumstances, it is necessary to clearly distinguish between the obligations of the parties under the contract of carriage and their obligations to each other under the contract of sale.
Unfortunately, there are no authoritative definitions of expressions such as "liner terms " and " terminal handling charges" (THC). Distribution of costs under such terms may differ in different places and change from time to time.
''Me parties are recommended to ~ in the contract of sale how such costs should be distributed between themselves.
Expressions frequently used in charter parties, such as "FOB stowed", "FOB Mowed and trimmed", are sometimes used in contracts of sale in order to clarify to what extent the seller under FOB has to perform stowage and trimming of the goods onboard the ship. Where such words are added, it is necessary to clarify in the contract of sale whether the added obligations only relate to costs or to both costs and risks.
As has been said, every effort has been made to ensure that Incoterms reflect the most common commercial practice. However in some cases ‑ particularly where Incoterms 2000 differ from Incoterms 1990 ‑ the parties may wish the trade terms to operate differently. They are reminded of such options in the ~le of the terms signalled by the word "However".

12. CUSTOMS OF THE PORT OR OF A PARTICULAR TRADE
Since Incoterms provide a set of terms for use in different trades and regions it is possible always to set forth the obligations of the parties with precision. To some extent it is therefore necessary to refer to the custom of the port or of the particular trade or to the practices which the parties themselves may have established in their previous dealings (cf. article 9 of the 1980 United Nations convention on Contracts for the International Sale of Goods). It is of course desirable that sellers and buyers keep themselves duly informed of such custom when they negotiate their contract and that, whenever uncertainty arises, they elm* their legal Position by appropriate clauses m their contract of sale. Such special provisions m the individual contract would supersede or vary anything that is set forth as a rule of interpretation in the various Incoterms.

13. THE BUYER''S OPTIONS AS TO THE PLACE OF SHIPMENT
In some situations, it may not he possible at the time when the contract of sale is entered into to decide precisely on the exact point or even the place where the goods should be delivered by the seller for carriage. For instance reference might have been made at this stage merely to a " range " or to a rather large place, for example, seaport, and it is then usually stipulated that the buyer has the right or duty to name later on the more precise point within the range or the place. If the buyer has a duty to name the precise point as aforesaid his failure to do so might result in liability to bear the risks and additional costs resulting from such failure (B5/137 of all terms). In addition, the buyer''s failure to use his right to indicate the point may give the seller the right to select the point which best suits his purpose (FCA A4).

14. CUSTOMS CLEARANCE
The term " customs clearance " has given rise to misunderstandings. 7hus, whenever reference is made to an obligation of the seller or the buyer to undertake obligations in connection with passing the goods through customs of the country Of export Or import it is now made clear that this obligation does not only include the payment of duty and other charges but also the performance and payment of whatever administrative matters are connected with the passing of the goods through customs and the information to the authorities in this connection. Further, it has ‑ although quite wrongfully ‑ been considered in some quarters inappropriate to use terms dealing with the obligation to clear the goods through customs when, as m intra ‑European Union trade or other free trade areas, there is no longer any obligation to pay duty and no restrictions relating to import or export. In order to clarify the situation, the words "where applicable" have been added in the A2 and B2, A6 and B6 clauses of the relevant incoterms in order for them to be used without any ambiguity where no customs procedures am required.
It is normally desirable that custom clearance is arranged by the party domiciled in the country where such clearance should take place or at least by somebody acting there on his behalf. Thus, the exporter should normally clear the goods for export, while the importer should clear the goods for import.
Incoterms 1990 departed from this under the trade terms EXW and FAS (export clearance duty on the buyer) and DEQ (import clearance duty on the seller) but in Incoterms 2000 FAS and DEQ place the duty of clearing the goods for export on the seller and to clear them for import on the buyer respectively, while EXW ‑ representing the seller''s minimum obligation ‑ has been left unamended (export clearance duty on the buyer). Under DDP the seller specifically agrees to do what follows from the very name of the term ‑ Delivered Duty Paid ‑ namely to clear the goods for import and pay any duty as a consequence thereof.

15. PACKAGING
In most cases, the parties would know beforehand which packaging is required for the safe carriage of the goods to destination. However, since the seller''s obligation to pack the goods may well vary according to the type and duration of the transport envisaged, it has been felt necessary to stipulate that the seller is obliged　 to pack the goods in such a manner as is required for the transport, but only to the extent that the circumstances relating to the transport are made known to him before the contract of sale is concluded (cf. articles 35. 1. and 35.2.b. of the 1980 United Nations Convention on Contracts for the International Sale of Goods where the goods, including packaging, must be "fit for any particular purpose expressly time of the conclusion of the contract, except where the circumstances show that the buyer did not rely, or that it was unreasonable seller''s skill and judgement").

16. INSPEMON OF GOODS
In many cases, the buyer may be well goods before or at the time they are handed advised to arrange for inspection of the goods before or at the time they are handed over by the seller for carriage‑ (SO ‑called pre ‑ shipment inspection or PSI) . Unless the contract stipulates other wise, the buyer would himself have to pay the cost for such inspection that is arranged in his own interest.
However, if the inspection has been made in order to enable the seller to comply with any mandatory rules applicable to the export of the goods in his own country, the seller would have to pay for that inspection, unless the EXW term is used, in which case, the costs of such inspection are for the account of the buyer.

17. MODE OF TRANSPORT AND THE APPROPRIATE INCOTERNS 2000

Any mode of transport
Group E
EXW Ex ''Works
（... named place）
Group F
FCA Free Carrier ( ... named place)
Group C
CPT Carriage Paid To ( ... named place of destination)
CIP Carriage and Insurance Paid To ( ... named place of destination)
Group D
DAF Delivered At Frontier ( ... named place)
DDU Delivered Duty Unpaid ( ... named place of destination)
DDP Delivered Duty Paid ( ... named place of destination)
Maritime and inland waterway transport only
Group F
FAS Free Alongside Ship
( ... named port of shipment)
FOB Free On Board
( ... named port of shipment)
Group C
CFR Cost and Freight
( ... named port of destination)
CIF Cost, Insurance and Freight
( ... named port of destination)
Group D
DES Delivered Ex Ship
( ... named port of destination)
DEQ Delivered Ex Quay
( ... named port of destination)

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