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INCOGRAIN contract n° 13 - MARITIME SHIPMENT F.O.B.
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 èdition" (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. 13
In the event of dispute as to interpretation of this text the french text shall be valid.
I. Price
Price is agreed for goods delivered and stowed on board the vessel.
A. export procedure - Customs-cleared goods
Any duties, taxes, etc in force on the day of customs clearance in the exporting country and relating to the goods being the subject of this contract shall be for Sellers'account. Similarly, any duties, taxes, etc. in force in the importing country shall be for Buyers'account.
B. Inland procedure - Including french overseas territories - Uncleared goods
Any modification of duties and/or taxes relating to the goods being the subject of this contract and occurring after the date of its conclusion shall be for Buyers'account.
II. Quantity
In the event of a sale of one or more vessels of a fixed tonnage, a margin of up to 10 % more or less, to be declared on final notice of arrival, shall be granted to Buyers for each vessel.
In case of a sale of a specific tonnage to be shipped in partial shipments (cargoes/parcels), the margin of contract quantity as privately agreed, at Buyers'option, shall apply for each period only to the balance available for the last shipment.
Unless otherwise agreed, the margin of contract quantity shall be settled at contract price up to 2 %, and any axcess above 2 % at market price on date of bill of lading.
In case of failure to agree on this price, Buyers shall nevertheless pay the documents at contract price and the final value shall be fixed by arbitration, both parties sharing the expenses thereof.
Where the tonnage is fixed within two limits, the margin of contract quantity -to be specified on final notice of arrival- shall remain at Buyers'option and for each period.
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. Condition - Quality - Technical specifications
a) Goods must be delivered dry, without abnormal odour, without smell, free from alive parasites of the goods, and meet all current trading standards.
b) For cereals, the technical addendum No.I for the sale of all cereals shall form an integral part of this contract. Unless otherwise agreed, the particular addendum relevant to the goods sold shall also apply.
c) In case of a sale based on a reference sealed sample, the goods shall conform strictly to said sample, failing which Buyers may either reject or accept delivery subject to an allowance to be fixed by arbitration.
d) In case of a sale based on a type sample, a difference of 1 % shall be accepted without allowance. If the difference exceeds 1 %, the allowance shall be fixed by arbitration, Buyers having the right of rejection above 5 %.
e) In case of a sale with basic technical specifications stating minimum or maximum limits, Buyers shall be entitled to reject if the agreed tolerances are exceeded, or to accept delivery subject to an allowance to be fixed by arbitration.
IV. Port of shipment
In the event of a sale calling for a compulsory nomination of the port of shipment, Sellers, under penalty of default, shall notify the name of one single port not later than the first day of the shipment period. If this day falls on a Saturday, a Sunday, a public holiday or another non-working day, the expiry date of the fixed period shall be brought forward to the preceding working day. However, Buyers may require this nomination to be made as from the fifteenth day of the month preceding a monthly shipment period, or fifteen concecutive days prior to the beginning of a shipment period other than a monthly period. In this case, Sellers must thenceforth under penalty of default definitely nominate the loading port within two working days following the date of the request.
V. Notices
In a provisional notice of not less than eight consecutive days, Buyers shall state the date from which they shall be able to present a vessel for loading, together with the estimated tonnage required.
Under penalty of default, this provisional notice must be compulsorily followed by a definite notice from Buyers of not less than four consecutive days, advising the name of the vessel (and if possible vessel's agents), the tonnage required and the expected date of berthing ; such date to fall within the seven consecutive days from the date stated (included) in the provisional notice and shall under no circumstances exceed the last day of the shipment period.
At all events, Buyers are in default if the provisional notice does not reach Sellers on the ninth consecutive day preceding the end of the shipment period. The same shall apply if the definite notice does not reach Sellers on the fifth consecutive day preceding the end of the shipment period. In either case, if this day falls on a Saturday, a Sunday or a public holiday or another non-working day, the expiry date of the fixed period shall be brought forward to the preceding working day.
VI. Deliveries - Loading
1) Contractual delivery periods are compulsory and shall constitute fixed limits.
2) Each separate shipment, made or to be made, shall be considered a separate contract.
3) Notice of readiness.
Buyers (or their duly appointed representative) shall pass on to Sellers (or their duly appointed representative) the notice of readiness. Said Sellers (or their duly appointed representative) shall on receipt of aforesaid notice nominate the loading berth or berths (the two first berths being free of charge, the additional berths entailing the refund by Sellers of any shifting expenses in accordance with general terms of the SYNACOMEX Charterparty), the wharf or wharves of the loading silo or silos and this under financial conpensation for any proven additional charges incurred.
The vessel to be loaded shall comply with the technical requirements resulting from the private agreement.
Should the loading berth be occupied, Buyers shall automatically be allowed a free extension of the contractual loading time equivalent to the duration of the waiting period ; no expenses or carrying charges shall be charged on account of this delay whether the vessel arrives within the contractual period or, as the case may be, during the extended period.
On the other hand, should this occupation of the loading berth -taking into account the contractual loading rate- ultimately result in demurrage for the vessel, in any case Sellers shall have no right to claim dispatch money from buyers.
4) Sellers'duties
The goods shall be ready for loading as from the date on which the vessel is in all respects ready to load at the loading berth, and in accordance with the given notice.
Sellers shall ensure loading onto the berthed vessel in accordance with the contractual loading rate or failing which in accordance with customs of the port. Time to count according to the general terms of the SYNACOMEX Charterparty. In case of delay, the resulting expenses shall be borne by Sellers with no right to claim any price increase resulting from this delay.
Sellers are in default if loading has not commenced within three working days following the day of berthing of the vessel, save in case of force majeure. Apart from the expenses specified in the above paragraph, Sellers shall reimburse Buyers all proven expenses resulting from the breach of the freight contract.
5) Buyers'duties
If on the date preadvised in the final notice the nominated vessel has not turned up at the port of loading or is not able and/or not in condition to be loaded, Buyers shall be responsible as follows :
If the delayed loading is carried out during the contract period, Buyers shall be liable for payment of proven expenses which may incur.
If the delayed loading has commenced but cannot be completed before the expiry of the contract period, taking into account the contractual loading rate, loading shall be completed and the goods loaded after the contract period shall be invoiced with a price increase calculated as hereafter stated.
If the delayed loading cannot commence during the contract period, Buyers, provided they give notice to Sellers not later than the last day of the contractual shipment period, may be granted an extension of eight consecutive days and shall pay to Sellers, in addition to the proven expenses as stated above, an additional charge of 1/2 % for a loading completed within the first four days, 3/4 % for a loading completed on the fifth or sixth day and 1 % for a loading completed on the seventh or eighth day according to the bill of lading date, over the contract price in force on the last day of the contractual shipment period, without any possibility for Sellers to invoice additionally any carrying or other charges, and provided the contractual loading rate has been respected. Otherwise, the loaded tonnage will be apportioned between the penalized days in accordance with the contractual loading rate without taking into account the bills of lading dates. Where loading has commenced whether during the contract period or during the eight days extension, it shall be completed unless otherwise instructed by Buyers. In such a case, the price increase for quantities loaded beyond the eight days extension shall be raised to 1.50 % provided the contractual loading rate has been complied with.
Should the nominated vessel under extension not be able and/or in a condition to load during said extension period, Buyers are in default and the purchase price shall be increased by 1 %.
6) Substitute vessel
Buyers may replace the initially nominated vessel by a substitute vessel subject to same obligations as the vessel nominated in the definite notice.
VII. Weighing
Weights shall be ascertained on the weighing devices at the place of loading at Sellers'expenses and under the optional supervision of Buyers or their representative.
The weight stated on the bill of lading shall be final, whether Buyers are represented or not.
VIII. Recognition of the goods
Recognition of the goods (quality and condition) and sampling shall take place latest at loading on quay, dock area, warehouse-silo, or approach barges or lorries from commencement till completion of loading. If Buyers are neither present nor represented, the goods shall be considered as contractual.
IX. Rejection of the goods
a) Any defect in condition which Sellers are unable to remedy immediately shall give Buyers the right of rejection. Any dispute shall be settled by arbitration.
b) Unless the actual nature of the supplied goods does not correspond to the contractual description, any statute or rule of law whether public or private (technical addendum) notwithstanding, a difference in quality shall not give Buyers the right to reject but only that of fixing by arbitration the allowance they may be entitled to.
c) Rejection of goods is only possible before loading ; Buyers may under no circumstances reject goods in the hold of a sea-going vessel on the grounds of difference in quality and/or condition ; all their rights being reserved as far as loaded goods are concerned to claim an allowance or indemnity to be fixed by arbitration.
d) All expenses, sequels and consequences of an accepted or contested rejection shall be borne either by Sellers or by the losing party, without prejudice to the application of clause XV "Default".
X. Sampling
Primary samples representing the average quality of the parcel shall be drawn contradictorily on loading between Sellers and Buyers or their duly appointed reprensentatives, per 500 tonnes lots. These primary samples shall serve to form the global sample of up to 2,500 tonnes or lots of 2,500 tonnes in case of larger cargoes. After homogeneization and reduction of the mixture for each lot of 2,500 tonnes or additional partial lot, the final samples for each of these lots shall be formed and sealed in compliance with the following provisions :
For the drawing of samples, and unless otherwise stated (addenda) the following provisions shall apply :
- Samples for ascertaining moisture content (humidity) must compulsorily be packed in moisture proof containers ;
- Samples for ascertaining broken and partly broken kernels must compulsorily be packed in rigid containers ;
- Samples for other purposes shall be packed in canvas, cotton or paper bags or any similar type of packing.
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.
In the event of obstruction by Sellers (or Shippers), Buyers (or their representative) may operate under the supervision of a bailiff, after summons in due form made by said Public Officer.
XI. Analyses
Samples drawn in accordance with Article X 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.
For any analysis or counter-analysis covering several final samples, the final result shall be expressed by the mean of the analysis results of each sample in proportion to the concerned tonnage.
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.
XII. Insurance
Insurance cover for goods fully or partly loaded aboard the vessel shall be under the responsibility of the Buyers who shall be deemed to have effected said insurance in due time with a first class Company.
Sellers have the right to demand an evidence of such a cover before proceeding with loading operations.
Any damage suffered shall in all cases be for Buyers'account.
XIII. Payment
A. Cash against documents
Payment shall be net cash without discount on first presentation through a bank of the invoice together with the original negotiable bill of lading 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.
B. By 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.
C. Delayed payement
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.
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 who 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, notices of shipment and the designation of the port 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 notices 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.
