Prof Sieg EiselenUNISA

Johannesburg Bar

Purpose of the CCBNew documentary requirements

Status quo – ships manifest Hearsay by foreign party not accountable in SA

CCB Three pillars of customs control

Nature of goods, classification Value of goods Origin

Importer takes responsibility for information provided

Opposition to CCB – 5 AssumptionsCCB will disturb current trade patterns and

relationsExporters reluctant to export past point of

customs clearanceCCB will necessitate change in INCOTERMS

Only use CIF to Durban and not City DeepReluctant to use DDPMay have an impact on passing of risk and

allocation of costsWill make carriers reluctant to accept contracts of

carriage past the point of customs clearance

INCOTERMSNature of INCOTERMS

Set of interpretational rules issued by ICCNot law, nor international custom, nor

mandatoryParties incorporate rules by referring to the

appropriate INCOTERMParties free to vary and tailor to meet their needs

Statement: “With CIF shipping to a port is mandatory”

Nothing in INCOTERMS is mandatory

INCOTERMS – CIF/CIPMost widely used INCOTERM is CIF even if

CIP is more appropriate with multimodal transport

Exporter

Hamburg Harbour

German Border

Delivery

Multimodal Carrier

SA Border

Durban Harbour

City Deep

Delivery

ImporterSales Contract

CIF

Delivery -Two contractsSales contract

between exporter and importerVienna Sales

Convention 1980 S 31 handing the goods

over to the first carrierCIF

Arrange transport Arrange insurance Delivery at port of

export [Ramberg 105] Clear for export

Contract of carriage between exporter and carrier

Handing over of goods to carrier

Carrier must deliver to importer at agreed point

Disturbance of current trade patternsStatement: Exporters reluctant to export past

point of customs clearanceNot correctUnder CIF/CIP the obligations of the exporter to

deliver the goods terminates at the port of export [Ramberg; 41 & 105]

What happens in the country of import is irrelevant

No reason for any change or disturbance

CIF only to a portStatement: You can only use CIF to Durban

and not City Deep if the latter is not an ‘inland port’

Not correctCIF is more appropriate port to port CIP is more appropriate for multimodal In practice CIF nevertheless used widely in

multimodal transport [see Pammenter par 11 & 13]Nothing mandatory – parties free to amendInterpretation of their contract

Sale becomes DDPUnder new rules sale past Durban in effect

becomes DDP and exporters reluctant to use DDP

Not correctParties determine the INCOTERMCarriage past customs point does not change

the sales contract if the parties chose CIFIf anything, it changes into CIP [see Pammenter par

11]

May impact on risk and costRequiring clearance at the coastal port may

have an impact on passing of risk and allocation of costs

Not correctThe transfer of risk and allocation of costs

determined by the INCOTERM chosenCIF – risk transfers at time of exportation [Rule

A5] Incidental and delay costs risk of the importer Carrier has a lien over the goods for payment

Carriers reluctantWill make carriers reluctant to accept

contracts of carriage past the point of customs clearance

Not correctNo evidence from carriers that the point of

customs has any relevance60% of goods pre-cleared in Durban already

in practiceSimply not relevant for carriers

No real basis for fearsFive assumptions on which opposition rests

shown to be incorrect in lawNo real basis for the opposition