Incoterms (International Commercial Terms) were developed by the Paris-based International Chamber of Commerce in the 1930s, and have been regularly revised to reflect changes in transportation and documentation. They specify the exporting seller’s and importing buyer’s obligations regarding carriage, risks and costs, and establish basic terms of transport and delivery. Incoterms do not define contractual rights other than for delivery, and both parties must specify the delivery terms as well as other issues, such as loss insurance and title transfer (a fact often misunderstood when contracts are negotiated).
Newer and smaller importers generally specify Group C Incoterms (including CIF) in which the seller arranges and pays for the main carriage without assuming its risk, another fact often overlooked by importers. They do so believing that it’s more convenient for the seller to handle these details, but generally wind up paying a higher price because the seller builds inflated shipping costs into their landed price. The importer is then further frustrated having to deal with a freight company chosen by the seller and who does not represent their best interests. Sophisticated importers prefer to use Group F terms (such as FOB, or “Free on Board”), giving them greater control over their shipments, and because risk and cost transfer from the seller to the buyer in any case (as with CIF), they are still able to manage and control their freight destiny.
When Does Ownership Transfer?
Increased supply chain visibility and the control of import shipments are critical FOB benefits. By taking control as cargo crosses the ship’s rail at the port of origin, importers are better able to obtain accurate and timely shipment information through working with the third party logistics provider of their choosing. Moreover, Incoterms do not deal with the transfer of ownership, when transfer of title in goods takes place, or other considerations necessary for a complete contract of sale. The issue of the transfer of title remains subject to what has been separately agreed upon between the parties in the relevant contract of sale and applicable law.
Importers who take the initiative—and have the market clout—can thus specify in their contract that title to the goods does not transfer from the seller until the importer takes possession at the port of entry or at a later point that they specify, even though the importer is paying the cost of freight. By deferring actual ownership until this future date, importers can delay accounting for costly shipments as inventory on their financial statements, thus lowering expenses and boosting reported income. The sales contract can provide for supplier invoicing upon confirmed arrival at destination port, and tracking will be made available to the supplier on-line and via e-mail notification. An online tracking system, which can give visibility to both the seller and buyer as well as allow for real time cross-checking and timing of shipments, is a huge advantage in making such arrangements work.
Creative Thinking plus Sophisticated Technology
It is important to note that any contract terms regarding transfer of title must conform to applicable tax and accounting standards, as well as financial reporting requirements imposed by the Sarbanes-Oxley Act and similar statutes. Each shipping contract that uses Incoterms is unique, and the parties must always specify that their contract is subject to Incoterms 2000. But proactively structuring contracts for the most advantageous transfer of title can provide a huge financial advantage to importers that pursue them.
Often importers feel they need to use Group C (including CIF) Incoterms, with all the problems and additional costs involved, and relinquish control of the freight to their suppliers in order to delay recording stock on their books. That simply is not the case, and knowledgeable importers who combine creative financial thinking with sophisticated computerized global shipment tracking can realize a substantial competitive advantage.
Simon Kaye is founder and CEO of Jaguar Freight Services, with operations and fully integrated door-to-door freight solution networks in Europe, North America, South America, Australasia, Asia, the Middle East and Africa. E-mail: [email protected]; www.jaguarfreight.com; 1-516-239-1900