[Code of Federal Regulations]
[Title 7, Volume 2]
[Revised as of January 1, 2008]
From the U.S. Government Printing Office via GPO Access
[CITE: 7CFR46.43]

[Page 277-282]
 
                          TITLE 7--AGRICULTURE
 
                        DEPARTMENT OF AGRICULTURE
 
PART 46_REGULATIONS (OTHER THAN RULES OF PRACTICE) UNDER THE 
PERISHABLE AGRICULTURAL COMMODITIES ACT, 1930--Table of Contents
 
Sec. 46.43  Terms construed.

    The following terms and definitions, when used in any contract or 
communication involving any transaction coming within the scope of the 
Act, shall be construed as follows:
    (a) Today's shipment, or shipment on a specified date (such as 
shipment September 12), means in connection with shipments by rail, that 
the goods referred to shall be under billing by the transportation 
company on the date the order is given or on the date specified in time 
to be picked up by a train schedule to move that day's loadings from the 
shipping point. When used in connection with shipments by boat, this 
term shall mean that the goods

[[Page 278]]

shall be placed alongside the boat and be under billing in time to be 
loaded and shipped on a boat scheduled to leave before midnight of the 
date specified. When used in connection with shipments by truck, this 
term shall mean that the goods shall be loaded and shall actually start 
from loading point to destination before midnight of the date specified.
    (b) Tomorrow's shipment or immediate shipment means that the 
shipment referred to shall be under billing by the transportation 
company in time to move on a transportation facility scheduled to leave 
not more than 24 hours later than allowed under ``today's shipment.''
    (c) Quick shipment means that the conditions of the offer, order, or 
confirmation will be met if the shipment is under billing by the 
transportation company in time to move on a transportation facility 
scheduled to leave not more than 48 hours later than allowed under 
``today's shipment.''
    (d) Prompt shipment means that the conditions of the offer, order, 
or confirmation will be met if the shipment is under billing by the 
transportation company in time to move on a transportation facility 
scheduled to leave not more than 72 hours later than allowed under 
``today's shipment.''
    (e) Shipment first part of week or shipment early part of week means 
that the produce referred to shall be under billing on Monday or Tuesday 
of the week specified in time to be picked up by a train scheduled to 
move these days' loadings from the shipping point. When used in 
connection with shipments by truck, this term shall mean that the goods 
shall be loaded and shall actually start from loading point to 
destination before midnight on Tuesday of the week specified.
    (f) Shipment middle of week means that the produce referred to shall 
be under billing by the transportation company in time to move on a 
transportation facility scheduled to leave Wednesday or Thursday of the 
week specified. When used in connection with shipments by truck, this 
term shall mean that the goods shall be loaded and shall actually start 
from loading point to destination before midnight on Thursday of the 
week specified.
    (g) Shipment last of week or shipment latter part of week means that 
the produce referred to shall be under billing by the transportation 
company in time to move on a transportation facility scheduled to leave 
on Friday or Saturday of the week specified. When used in connection 
with shipments by truck, this term shall mean that the goods shall be 
loaded and shall actually start from loading point to destination before 
midnight on Saturday of the week specified.
    (h) Shipment as soon as possible or Shipment as soon as car (truck) 
can be secured means that the shipper is uncertain as to when the 
shipment can be made, but expects to make it within a reasonable time 
and will make it soon as possible. But in any case where these words are 
used the buyer shall, at any time after 7 days from the date the order 
is given, have the right to cancel the order or contract of sale, if 
notice of his decision so to cancel shall have been received by the 
shipper before shipment has been made.
    (i) F.o.b. (for example, f.o.b. Laredo, Tex., or f.o.b. California) 
means that the produce quoted or sold is to be placed free on board the 
boat, car, or other agency of the through land transportation at 
shipping point, in suitable shipping condition (see definitions of 
``suitable shipping condition,'' paragraphs (j) and (k) of this 
section), and that the buyer assumes all risk of damage and delay in 
transit not caused by the seller irrespective of how the shipment is 
billed. The buyer shall have the right of inspection at destination 
before the goods are paid for to determine if the produce shipped 
complied with the terms of the contract at time of shipment, subject to 
the provisions covering suitable shipping condition.
    (j) Suitable shipping condition, in relation to direct shipments, 
means that the commodity, at time of billing, is in a condition which, 
if the shipment is handled under normal transportation service and 
conditions, will assure delivery without abnormal deterioration at the 
contract destination agreed upon between the parties. If a good delivery 
standard for a commodity is set forth in Sec. 46.44, and that commodity 
at

[[Page 279]]

the contract destination contains deterioration in excess of any 
tolerance provided therein, it will be considered abnormally 
deteriorated. The seller has no responsibility for any deterioration in 
transit if there is no contract destination agreed upon between the 
parties.
    (k) Suitable shipping condition, in connection with reconsigned 
rolling or tramp cars, means that the commodity, at time of sale, meets 
the requirements of this phrase as defined in paragraph (j) of this 
section, relating to direct shipments.
    (l) F.o.b. acceptance or Shipping point acceptance means that the 
buyer accepts the produce at shipping point and has no right of 
rejection. The buyer has recourse against the seller if the produce was 
not in suitable shipping condition (see definitions, paragraphs (j) and 
(k) of this section) or has recourse for a material breach of contract, 
providing the shipment is not rejected. The buyer's remedy under this 
method of purchase is by recovery of damages from the seller and not by 
rejection.
    (m) F.o.b. acceptance final or Shipping point acceptance final means 
that the buyer accepts the produce at shipping point and has no right of 
rejection. Suitable shipping condition does not apply under this trade 
term. The buyer does have recourse for a material breach of contract, 
providing the shipment is not rejected. The buyer's remedy under this 
type of contract is by recovery of damages from the seller and not by 
rejection of the shipment.
    (n) F.o.b. steamer means that the produce is to be placed free on 
board steamer at shipping point, in suitable shipping condition (see 
definitions of ``suitable shipping condition'', paragraphs (j) and (k) 
of this section) in accordance with the terms of the contract, and that 
the buyer assumes all responsibility and risk of damage thereafter.
    (o) F.a.s. steamer means that the produce is to be delivered free 
alongside the steamer, in suitable shipping condition (see definitions 
of ``suitable shipping condition'', paragraphs (j) and (k) of this 
section), in accordance with the terms of the contract, and that the 
buyer assumes all responsibility and risk of damage thereafter.
    (p) Delivered or delivered sale means that the produce is to be 
delivered by the seller on board car, or truck or on dock if delivered 
by boat, at the market in which the buyer is located, or at such other 
market as is agreed upon, free of any and all charges for transportation 
or protective service. The seller assumes all risks of loss and damage 
in transit not caused by the buyer For example, a sale of ``U.S. No. 1 
potatoes delivered Chicago'' means that the potatoes, when tendered for 
delivery at Chicago, shall meet all the requirements of the U.S. No. 1 
grade as to quality and condition.
    (q) In transit, roller, or rolling car means that the produce 
referred to is in possession of the transportation company and under 
movement from shipping point when the quotation is made, and that the 
car is moving over a route in line of haul between the point of origin 
and the market in which delivery is to be made, and has been so moving 
since date of shipment, without any delay attributable to the shipper or 
his agent. Unless otherwise specifically agreed, if a roller, rolling 
car, or a car in transit is sold f.o.b. shipping point, the buyer shall 
be deemed to have assumed only the lowest all-rail freight charges 
applicable for the shipment between the point of origin and the contract 
destination agreed upon between the parties together with such other 
charges which would have accrued if the car had been originally shipped 
direct to the contract destination: Provided, That the buyer is not 
liable for payment for protective services if the seller does not inform 
him of the kind and extent of such services ordered from the carrier.
    (r) Tramp car or tramp car sale means that the produce has left the 
shipping point under a bill of lading issued prior to the day on which 
the quotation is made and has moved or is moving over a route out of 
line of haul with the market in which it is to be delivered or in which 
it is being offered or quoted, or has been moving over a route in line 
of haul between the point of origin and the market in which it is to be 
delivered or in which it is being offered or quoted, but has been 
delayed in transit

[[Page 280]]

by the seller, or has been held by the transportation company at 
diversion or other points en route awaiting instructions from the 
shipper and by such holding or delay has missed scheduled movement 
between points of shipment and the market in which it is to be delivered 
as the result of the transaction in question. Unless otherwise 
specifically agreed, if a ``tramp car'' is sold f.o.b. shipping point or 
a ``tramp car sale'' is made f.o.b. shipping point, the buyer shall be 
deemed to assume only the lowest authorized all-rail freight charges 
applicable for the shipment between the point of origin and the contract 
destination agreed upon between the parties, together with such other 
charges which would have accrued if the car had been originally shipped 
direct to the contract destination: Provided, That the buyer is not 
liable for payment for protective services if the seller does not inform 
him of the kind and extent of such services ordered from the carrier.
    (s) Rolling acceptance means that the buyer accepts at time of 
purchase produce which is in the custody of the transportation company 
and under movement from shipping point, under the terms and conditions 
described in paragraphs (q) and (r) of this section, except that the 
buyer assumes full responsibility for transportation of the goods from 
time of purchase, has no recourse against the seller because of any 
change in condition after time of purchase unless the goods at the time 
of sale were not in suitable shipping condition, and has no right of 
rejection on arrival. The buyer's remedy under this method of purchase 
is by recovery of damages from the shipper and not by rejection of the 
shipment. By agreement between the parties, however, the purchase may be 
made subject to inspection at any specified point while the car is 
rolling or in transit and the point at which the buyer will assume 
transportation charges may be specified without affecting the time of 
acceptance of the commodity.
    (t) Rolling acceptance final means the same as Rolling acceptance 
except that the buyer has no recourse against the seller because of any 
change in condition of the produce in transit. The buyer has recourse 
against the seller for any material breach of the contract providing the 
shipment is not rejected. The buyer's remedy under this type of contract 
is recovery of damages from the seller and not by rejection.
    (u)(1) Track sale or sale on track means a sale of produce on track 
after transit and after inspection or opportunity for inspection by the 
buyer, or his agent, who shall be considered to have waived any right to 
reject the commodity so purchased upon receipt by him or his duly 
authorized representative from the seller or his duly authorized 
representative of the bill of lading, delivery order, or other document 
enabling him to obtain the goods from the carrier.
    (2) The above definition shall not be construed as depriving the 
buyer of a right to reparation when the unloading of the car 
demonstrates that a part of the lading which was not accessible to 
inspection was of a quality or condition materially inferior to that 
portion which was accessible to inspection; but notice of intention to 
file a claim for reparation must be given the seller within 24 hours 
after receipt by the buyer of the delivery order or bill of lading.
    (3) If the seller gives the date of arrival when quoting price, the 
buyer shall, in the absence of any written memorandum of sale to the 
contrary, assume all charges that accrue on the shipment from the date 
of its arrival. If the seller fails to furnish the date of arrival when 
quoting price the buyer may, in the absence of any written memorandum of 
sale which includes the date of arrival or specific written statement as 
to who shall assume such charges as have accrued after arrival, assume 
that the shipment arrived at point of sale on the day and date upon 
which the purchase was made, and shall be liable only for such charges 
as would properly attach to a shipment arriving on the date the purchase 
was made.
    (v) C.a.f., c.a.c., and c.i.f. mean cost and freight, cost and 
charges, and cost, insurance, and freight, respectively. C.a.f. sales 
shall be deemed to be the same as f.o.b. sales, except that the selling 
price shall include the correct freight charges to destination. C.a.c. 
sales shall be deemed to be the same as

[[Page 281]]

f.o.b. sales, except that the selling price includes the correct freight 
and refrigeration or heater charges to destination. C.i.f. sales shall 
be deemed to be the same as f.o.b. sales, except that the selling price 
includes insurance and the correct freight and refrigeration or heater 
charges to destination.
    (w) Carload, carlot, or car when used in offers, quotations, or 
contracts in which the quantity is not more definitely specified, and in 
the absence of well-established trade custom or standard as to size of a 
``carload,'' ``carlot,'' or ``car'' of the produce in question, means 
not less than the minimum quantity required by the carrier's tariff 
applicable to the movement, and not more than 10 percent in excess of 
such minimum tariff requirements, except that, where the carrier's 
tariffs provide alternative rates and minimum, the buyer shall state 
which tariff minimum must be observed, and, in event of failure so to 
do, the shipper may exercise his discretion, in no case, however, 
exceeding the higher alternative minimum quantity provided by the 
tariff, with only such variations therefrom as are permitted by this 
paragraph.
    (x) Shipping-point inspection means that the seller is required to 
obtain Federal or Federal-State inspection, or such private inspection 
as has been mutually agreed upon, to show the compliance of the lot sold 
with the quality, condition, and grade specifications of the contract, 
and that the seller assumes the risk incident to incorrect 
certification.
    (y) Shipping-point inspection final, or inspection final following 
the name of the State or point, as California inspection final, means 
that the seller is required to obtain Federal or Federal-State 
inspection, or such private inspection as has been mutually agreed upon, 
to show the compliance of the lot sold with the quality, condition, and 
grade specifications of the contract, and that the buyer assumes the 
risk incident to incorrect certification and is without recourse against 
the seller on account of quality, condition, and grade.
    (z) Subject approval Government inspection means that the seller is 
required to obtain Federal or Federal-State inspection, or such private 
inspection as has been mutually agreed upon, and to correctly 
communicate, by wire or other agreed means, the statements on the 
certificate as to quality, condition and grade, and other essential 
information, whereupon the buyer, upon approval thereof, will be deemed 
to have accepted the produce without recourse against the seller on 
account of quality, condition, and grade.
    (aa) Guaranteed advance used in connection with an advance payment 
on consigned produce means that the person making the advance guarantees 
that the net proceeds to the consignor shall at least equal the amount 
so advanced, and that the consignor cannot be held liable for any 
deficit resulting from the sale of the produce, if such deficit is not 
occasioned by or contributed to by an act of the consignor.
    (bb) Accommodation advance or regular advance, used in connection 
with an advance of money or credit against anticipated net proceeds to 
be realized from the sale of consigned produce, means that the consignor 
has received an advance of money or credit and that, if the consigned 
produce does not sell for enough to cover the cost of transportation and 
handling, including customary or agreed commission and the advance made 
to him, the consignor must return to the person making the advance a sum 
equal to the deficit sustained.
    (cc) Price arrival, in the absence of a contrary specific 
understanding, means that the produce is shipped either direct to the 
customer or to an agent of the consignor, for the benefit of the 
customer, the price to be subject to agreement between the customer and 
the consignor upon the arrival of the produce at the customer's 
destination, with sufficient time being permitted for inspection.
    (dd) F.o.b. inspection and acceptance arrival means that the produce 
quoted or sold is to be placed by the seller free on board car or other 
agency of through transportation at shipping point, the cost of 
transportation to be borne by the buyer, but the seller to assume all 
risks of loss and damage in transit not caused by the buyer, who has the 
right to inspect the goods upon arrival and to reject them if, upon such 
inspection, they are found not to meet

[[Page 282]]

the specifications of the contract of sale at destination. The buyer may 
not reject without reasonable cause. Such a sale is f.o.b. only as to 
price and is on a delivered basis as to grade, quality, and condition.
    (ee) F.o.b. sale at delivered price means the same as f.o.b., except 
that transportation charges from shipping point to destination shall be 
borne by the seller; that is, the sale is f.o.b. as to grade, quality, 
and condition, and delivered as to price.
    (ff) Purchase after inspection means a purchase of produce after 
inspection or opportunity for inspection by the buyer or his agent. 
Under this term the buyer has no right of rejection and waives all 
warranties as to quality or condition, except warranties expressly made 
by the seller.
    (gg) Cash sale means that the buyer is required to pay the seller 
within 24 hours after his acceptance of the shipment.
    (hh) Joint Account--Split Above means that the receiving joint 
partner will pay promptly the agreed cost of the shipment to his joint 
partner. After disposition of the produce, the parties will divide 
equally the profits on the shipment after deduction of the cost of the 
shipment and proper expenses from the gross proceeds. The receiving 
joint partner will pay all expenses and cannot recover any loss 
resulting from the joint venture.
    (ii) Commercial Unit means a single shipment of one or more 
perishable agricultural commodities tendered for delivery on a single 
contract, such commercial unit must be accepted or rejected in its 
entirety. Acceptance of a commercial unit does not modify the parties' 
existing contractual rights and responsibilities.

[25 FR 4853, June 2, 1960, as amended at 26 FR 12209, Dec. 21, 1961. 
Redesignated at 28 FR 7067, July 11, 1963, and amended at 44 FR 50576, 
Aug. 29, 1979]

                         Good Delivery Standards