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INCOGRAIN contract n° 12 - MARITIME SHIPMENT C.I.F.
Please note: The contracts and guides contained in the present collection have been selected for illustrative purposes only. Juris International shall not be liable for their contents or use.
As of September 1, 1996 the name Incograin will replace that of "Formule de Paris". However, all contracts signed prior to this date under the name "Formule de Paris" will remain in effect. New contracts entered into as of September 1, 1996 under the former denomination "Formule de Paris, dernière édition" (Paris Contract Form last edition) will be subject to the clauses and conditions of Incograin as stipulated hereafter. Incograin is a registered trademark, the use of which is strictly reserved to contracts issued by the Syndicat de Paris du Commerce et des Industries des Grains.
General conditions of the Incograin form no : 12
In the event of dispute as to interpretation of this text the french text shall be valid.
I. Price
Price is agreed for goods CIF ON BOARD (free out) breaking bulk and discharge expenses for receivers' account.
Unless otherwise agreed, any modification of duties and/or taxes, customs expenses and ancilliaries, relating to the goods being the subject of this contract and occuring after the date of its conclusion, shall be for Exporters' account if such duties and/or taxes are imposed or modified by the authorities of the exporting country ; and reciprocally for Importers 'account if such duties and/or taxes are imposed or modified by the Authorities of the importing country.
II. Quantity
In case of total fulfilment of the contract or of a period of shipment by loading fully one single vessel a margin of 10 % more or less on the contractual quantity is granted to Sellers. Unless otherwise agreed such a margin is to be invoiced up to 2 % at contract price and for the remaining 8 % at the market price on date of bill of lading.
In case of fulfilment of a contract or of a period in partial shipments (Cargoes/Parcels) a margin of five per cent more or less is granted to Sellers. Unless otherwise agreed, such a margin shall be invoiced up to 2 % at contract price and for the remaining 3 % at the market price on date of bill of lading.
Should parties fail to mutually agree on the market price said price shall be fixed by arbitration the fees of which shall be shared by both parties, Buyers meanwhile paying the documents.
Where the tonnage is fixed within two limits the margin on quantity is at Sellers' option.
In case of default of fulfilment, the nominal or mean quantity between the minimum/maximum limits shall serve as a basis for the cancellation.
III. A) Quality - Technical specifications
Quality is to be understood as a fair and merchantable average of the season's shipments at place and time of shipment.
The parties may agree to use an addendum relevant to the goods sold. At all events for cereals the technical addendum n° I for the sale of all cereals shall form an integral part of this contract.
Unless the actual nature of the supplied goods does not correspond to the contractual description and unless otherwise agreed a difference in quality shall not give Buyers the right to reject but only that of having the allowance they may be entitled to fixed by arbitration.
In case of a sale based on a reference sealed sample a difference of 1 % shall be accepted without allowance. Should an excess over 1 % be claimed and recognized, the allowance shall be settled by arbitration but should it exceed 10 % Buyers may demand that Sellers take back the goods and reimburse their price.
B) Condition (as per parties' agreement)
Option I - Guaranteed upon arrival (Rye terms)
Sound condition is guaranteed at discharge. Default of condition shall not give Buyers the right to reject buy only that of having the allowance they may be entitled to fixed by arbitration.
Goods shall be considered as sound notwithstanding a slight dry warmth in the holds not altering them.
Any damage ascertained at discharge shall be for Sellers' account.
Option 2 - As is (tale quale)
Goods condition is guaranteed sound at place and time of shipment.
IV. Optional port of discharge
In case of a sale including Buyers' option to nominate the port or ports of discharge, they shall notify it/them upon Sellers' first request made earliest on the first day of the contractual shipment period. Buyers are bound to declare port/s within two working days from Sellers' request, failing which the latter shall fix the discharge port within the geographical range provided for in the contract.
V. Shipment
Shipment is to be made by seaworthy first class steamer/s, direct or indirect, without transhipment, under one or several bills of lading, however with a minimum of 50 tons for one parcel.
Contractual shipment periods are compulsory and shall constitute fixed limits. Bill of lading to be dated only when the goods are actually on board. (clean on board).
Date of the bill of lading shall be accepted as proof of date of shipment in the absence of evidence to the contrary.
Each separate shipment, made or to be made, shall stand as such and on its own as a separate contract.
Extension of shipment
Under the compulsory condition to notify Buyers by telex or telegram, not later than the last working day of the shipment period Sellers have the option to extend said period by eight running days.
In such a case Sellers shall deduct in the invoice from the C.I.F. gross contract price, an allowance of 1/2 % for shipment within the first four days ; 1 % for shipment on the 5th or 6 th day ; 1 1/2 % for shipment on the 7th or 8th day, as per bill of lading date.
Should Sellers fail to ship they shall be considered in default on the expiry of the extension period and the contract price shall be reduced by 1 1/2 %.
VI. Appropriation
By telegram or telex sent within two working days of date of bill of lading and stating the date and/or the number of the contract, Sellers must notify Buyers, direct or through their representative or their agent, the name of the vessel, the date of the bill of lading, the port of shipment and the weight of the goods.
Sellers shall not be liable for any transmission error or for other errors not implying a fault of their own.
A valid appropriation transfers the ownership of the goods.
Prorata
Should the goods, subject of the present contract, form in the vessel where they have been loaded a part of a larger quantity of similar goods, whether in bags or bulk, no separation or distinction between the parcels shall be necessary ; Buyers shall waive any specialization or particularisation of the parcel destined to them.
With regard to loose collected, damaged and sweepings, any shortage or excess ascertained on discharge, as well as all consequences resulting from events concerning the total quantity of similar goods loaded on the vessel, shall be shared and borne by all Buyers/ Receivers having concluded upon the present terms, pro-rata of the quantity appropriated to them on the vessel.
Any one of the Receivers receiving more or less than his pro-rata share shall settle with the others (the other) in cash at the market price ruling on the day of the ship's arrival (said price being fixed by arbitration if not amicably agreed).
All Sellers and Buyers of a parcel forming part of a larger quantity, as above explained, provided they have contracted under the present clauses, shall be deemed to have entered into mutual agreements to the above effect with the other Co-receivers and to have accepted to refer to the arbitration of the Chambre Arbitrale de Paris, any dispute which might arise between them and their (his) Co-receiver/s regarding the execution of the pro-rata clause, as aforesaid.
VII. Insurance - Average - Customs
a) The insurance shall be covered at least for the amount of the provisional invoice, plus 2 %, freight not deducted, on terms at least equivalent to "F.A.P. sauf" terms of the Police Française d'Assurance Maritime sur Facultés (French Maritime Insurance Policy on Contingencies).
Whether covered under policies and/or certificates issued by companies and/or maritime insurance brokers, for the supply of which Sellers shall be responsible, the insurance shall be effected with companies considered as first class but whose solvency Sellers do not guarantee ; the insured amount in excess of 2 % as aforesaid shall remain in the hands of the policy holder.
War and mine risks insurance up to the rate of 1/2 per thousand shall be for Sellers'account and covered by them for account of Buyers ; above 1/2 per thousand the additional premium rate shall be for Buyers' account and Sellers shall be bound to justify the excess premium.
b) Damages - In case of any average whatsoever, Buyers are imperatively bound to take all necessary provisional steps for their own account as well as for Sellers' account or for the account of whom it may concern so as to secure possible recourse against the insurance companies and/or any other responsible parties.
c) Customs - In case of international transportation Sellers are bound to comply with customs formalities for exit out of the exporting country, and, eventually with those required by the transit country/ies and to pay for the expenses involved. Reciprocally the entry formalities into the importing country are for Buyers' account.
VIII. Payment
Payment shall be net cash without discount on presentation through a bank of the invoice together with the original negotiable bill of lading, the insurance policy and/or certificate and any other documents which Sellers have undertaken to supply.
In the event of said documents not being available (original negotiable bill of lading excepted) Sellers may provide a letter of guarantee including all useful and usual information, such guarantee to be countersigned, if required by Buyers, by a first class Bank.
Irrespective of the terms of payment provided for in the special contract conditions, Sellers may demand at any time within the shipment period and not earlier than fifteen consecutive days prior to the beginning of the aforesaid period, the opening at Buyers'expenses of an irrevocable documentary credit confirmed by the bank they have nominated in their demand. This opening shall be notified to Sellers'bank within five working days from the date of request. Validity conditions shall be those described hereafter. A discount of 1 % shall be granted to Buyers.
Documentary credit
Where it is provided for in the contract that payment shall be effected through a documentary credit, said credit shall be irrevocable and be confirmed by Sellers' bank which must receive notification of such opening not later than five working days prior to the first day of the shipment period.
The credit shall remain valid at least fifteen working days beyond the contractual shipment period, and, in case of a temporary hindrance leading to extension of the contract period (see Art. XIV), the validity of the credit shall be extended by as much time as granted for fulfilment.
Delay in the presentation of documents - In the event of the shipping documents not being presented on vessels' arrival at destination and before opening of the hatches Buyers shall be bound (in so much and as far as the goods have been appropriated) to claim reception by supplying the necessary bank guarantee, so as to receive the goods at discharge without delay. Cost of this guarantee shall be for Buyers' account, unless proven negligence of the Sellers or of their representatives.
Delayed payment
Buyers shall take all necessary steps so that payment be made to Sellers on the due contractual date.
In case of delayed payment, Buyers shall be liable to Sellers, without need of a formal notice, for a penalty of 0,15 % based on the invoice amount (VAT excluded) per day of delay as damages. Buyers shall also be liable for the financial costs caused by the delay and any proven expenses incurred by Sellers to obtain payment.
Save for clauses contrary to Public Order :
- at any time, before continuing to deliver goods, Sellers are entitled to claim payment of any previous delivery the due payment of which might have been delayed ;
- in case of late opening of the credit, Sellers may postpone the fulfilment of the open contract until receipt of the bank confirmation that credit has been opened ;
- in either case, Sellers may after having given a formal notice of minimum two working days cancel the tonnage still to be fulfilled on the whole contract without prejudice to their rights to claim damages as provided for in clause XV "Default".
Any expenses arising from delays in payment and/or opening of credit shall be for the account of defaulting Buyers.
Reciprocally, defaulting Sellers shall be responsible for any expenses incurred by Buyers with regard to payment
IX. Discharge
Discharge of the goods shall be effected in accordance with parties' agreement and/or as per Charter-party.
X. Recognition of the weight
Weights shall be ascertained contradictorily between Sellers and Buyers, or their representatives, on the weighing devices of the port of discharge. If either party refuses to attend the other shall call for the sworn weigher or a Public Officer.
When discharge cannot be completed within the contractual laydays ascertainment of the weights shall be effected within the 10 days of expiry of the laytime, failing which bill of lading weight shall become final.
Where recognition of the weights has been derogatorily agreed at shipment, bill of lading weight is final whether Buyers duly convened are attending or not.
XI. Recognition of the goods
As per parties' agreement recognition of the goods is taking place, either at shipment or at discharge.
a) When the parties have agreed that recognition of the quality, condition and technical specifications shall take place at shipment these operations as well as the drawing of samples shall be effected from the beginning of loading and be continued until the end. Sellers must give Buyers a notice of at least three working days prior the beginning of loading to enable the latter to be present or represented during the loading operations. If Buyers duly convened, are neither present nor represented, the goods shall be deemed to be up to the contractual description.
b) When the parties have agreed that recognition of the quality, condition and technical specifications shall take place at discharge these operations as well as the drawing of samples shall be effected from the beginning until the end of vessel's discharge within the laydays granted for discharge. Should discharge not be completed when laydays have expired an additional delay of 10 running days shall be granted to Buyers to complete it. If, notwithstanding such extension, discharge is not completed the goods shall be deemed to be up to the contractual description.
XII. Sampling
Where provided for in the contract or at the request of either party, primary samples representing the average loading quality shall be drawn and sealed contradictorily between Sellers and Buyers or their duly appointed representatives, at the place of recognition of the goods provided for in the contract, by 500 metric ton lots. These primary samples shall serve to form the global sample of up to 2,500 metric tons or lots of 2,500 metric tons in case of larger cargoes. After homogeneization and reduction of the mixture for each lot of 2,500 metric tons or, if any, an additional partial lot, the final samples for each of these lots shall be formed and sealed, unless otherwise stated (addenda), in compliance with the following provisions. :
- Samples for ascertaining moisture content (humidity) must be compulsorily packed in moisture proof containers ;
- Samples for ascertaining broken and partly broken kernels must be compulsorily packed in rigid containers ;
- Samples for other purposes shall weigh at least one kilogram and be packed in canvas, cotton or paper bags or any simular type of packing
These samples shall serve for analyses and eventual arbitrations. However should either party refuse to seal the drawn samples, the other party shall call for a sworn broker or any other qualified expert and the costs of such intervention shall be for the missing party's account.
In case of arbitration for odour or smell the Arbitration Tribunal referred to in urgency proceedings is sole qualified to judge and appreciate the sealed samples compulsorily submitted to its members.
XIII. Analyses
Samples drawn in accordance with Article XII shall serve for analyses.
The request for an analysis as well as the sample(s) shall be sent to the laboratory(ies) appointed by the parties or, failing such an appointment, to the Société Auxiliaire de la Chambre Arbitrale de Paris (S.A.C.A.P.) within seven working days following the date of sampling, the other party being informed of the aforesaid request within the same time limit.
Should either party call for a counter-analysis, said party shall give notice thereof to the other party within seven working days from receipt of the analysis report, another sample being used ; said sample shall be sent within the same delay to the laboratory(ies) nominated by the parties or failing such nomination to the Société Auxiliaire de la Chambre Arbitrale de Paris (S.A.C.A.P.).
The claimant must indicate in his request the name and address of the other party so as to enable the laboratory to send the official analysis certificate to both parties. The claimant shall however remain exclusively responsible for the formal notification of this certificate of analysis to the other party.
If the variation between the first and second analysis does not exceed 1/2 %, the first analysis shall be accepted as final. In other cases, the mean of the two analyses shall be accepted.
The certificates of the first or second analysis shall be passed on without delay to the other party.
The costs of the first or second analysis shall be borne by the losing party.
XIV. Force majeure
Should shipment of the goods be utterly prevented due to unforeseeable circumstances, this contract shall be considered null and void for the period/s still to be fulfilled.
Should the hindrance be only of a momentary nature (strike, lock-out, ice, momentary impossibility to load, etc...), the contractual shipment period shall be extended as from the resumption of work by as many consecutive days as the number of days during which work was hindered within the normal contemplated period of shipment. A minimum extension of 14 consecutive days shall be allowed if the hindrance has taken place within the last 14 days of the contract period.
However, should the hindrance continue for more than 60 consecutive days, the contract shall be considered null and void for the delivery/ies that had been postponed.
Within 3 working days from the beginning of the hindrance, the reasons causing the delay of fulfilment must be compulsorily notified to the other party.
Buyers may demand evidence of the claimed hindrance supported by a certificate issued by the qualified authorities.
XV. Default - Determination of damages
Except in the above mentioned cases, if either party is defaulting, the non defaulting party shall have the right without prior formal notice, either :
a) to treat the contract as null and void.
b) to purchase or resell the goods, as the case may be, within five working days, for the account of the defaulting party and to claim from them the reimbursement of the damages.
c) to claim the price difference between the contract price and the ruling market price on the date of default.
In case of repurchase, the unsupplied goods may be substituted, if not to be found, by other goods of equivalent quality even if their origin or manufacture are different.
The non defaulting party must notify the other party, within five working days from the date of default, the right he has exercised. Should he omit said notice or should the repurchase (or resale) be not effected as per paragraph b), the paragraph c) of the present clause is to apply.
XVI. Insolvency of either party
If either party is in a situation of suspending payments, or under Ruling of Court or under liquidation proceedings or in any other similar legal situation, the other party shall have the right to demand, by way of a formal notice, to the Syndic or the private or legal Trustee of the party suspending payment an immediate declaration of intent with regard to the fulfilment of the contract.
If said notice remains unanswered during five working days save for rules of law to the contrary or if the legal Trustee declares that he will not fulfil the obligations of the party under trusteeship the other party may implement his rights under the "Default" clause. Otherwise, the debts arising from the Trustee's undertaking to fulfil the contract shall be considered preferential debts.
XVII. Arbitration
Under penalty of being time barred :
A. Notification
1) Quality and condition
Any claim for arbitration shall be notified to the other party not later than seven working days after recognition of the goods.
However, in case an analysis is provided for in the contract or rendered necessary either by disagreement of the parties at time of the contradictory inspection of the goods or where it is impossible to perform these inspections in accordance with contract terms, the arbitration claim may still be notified to the other party not later than fourteen working days after receipt of the analysis certificate.
Should either party exercise his right to have a second analysis performed as per provisions of clause XI, the party willing to exercise his right of arbitration may still notify his claim to the other party not later than seven working days after receipt of the second analysis certificate.
2) Other disputes
For all other disputes not involving quality and condition, the party willing to exercise his right of arbitration shall notify his claim to the other party within the six months following the last day allowed for fulfilment of the obligations.
B. Referring of the disputes
1) Quality and condition
The claimant shall within fourteen working days following the notification of the arbitration claim refer the dispute to the Chambre Arbitrale de Paris and send them the samples within the same time limit.
2) Other disputes
The claimant shall refer the dispute to the Chambre Arbitrale de Paris within six months following the last day allowed for fulfilment of the obligations.
Where a financial settlement is involved there is no time - barring limit for lodging a claim.
XVIII. Time limits
Contractual time limits are to be considered compulsory.
The indivisible working day is defined by the working time from 08 H 30 to 17 H 30. Letters, telegrams and telexes arriving after 17 H 30 as well as those arriving on a Saturday, a Sunday, a holiday or a non-working day shall be deemed as arrived on the opening of the first following working day.
Time limits other than those laid down for deliveries or preadvices of shipment expiring on a Saturday, a Sunday, a holiday or a non-working day shall be extended until the next following working day.
A holiday is to be understood as that in force in the respective place of fulfilment.
Extension of time limits
Unless otherwise agreed, time limits other than those laid down for deliveries or preadvices of shipment shall be extended for reforwarding telexes or telegrams received from third parties either within the last two hours of the normal working time or after expiry of the time limit. This exceptional extension shall be restricted to three working days. It will be calculated and justified by allowing two working hours for each third party specifically nominated.
XIX. Compromissory clause
Any dispute arising out of or under this contract including those concerning its existence and validity shall be referred for final determination to an arbitration arranged by the Chambre Arbitrale de Paris (61 Bourse de Commerce, 75040 Paris Cedex 01 France) in accordance with their rules of which both parties hereto declare to be cognisant and which they accept.
XX. Refusal to abide by an award of arbitration
Should a party having lost an arbitration refuse to abide by the award the other party shall be entitled to apply to the Syndicat de Paris to have the name of said party published in a circular letter addressed to all its members.
The Syndicat de Paris will notify to the party concerned, the other party's claim by a registered letter allowing them twenty days for abiding by the award. On expiry of such delay, the Syndicat de Paris will proceed with the publication.
The party who, notwithstanding this additional delay, has not complied with the award does hereby formally waive any claim against or about such publication.
