Thursday, 6 May 2010

Trafigura: Should They Have Known?

PREAMBLE

I would have posted this a few days ago but I thought it right that I gave both Trafigura and Dr Gary K Busch an opportunity to read, and to comment upon, the post.  I assured both parties that I would append their comments, if any, in full at the end of my post.

Both have taken advantage of my offer.  My post is published unchanged but I will clarify some issues in a later post.

Trafigura’s response is short and so I have copied it immediately after this preamble. 

Dr Busch’s is much longer and, so as planned, I append his response at the end of this post.  Dr Busch and I have exchanged several emails to clarify my understanding of his comments.  As a result I will post again in a few days with a summary of my understanding.

I DO URGE YOU TO READ BOTH RESPONSES.

___________________________________________________

TRAFIGURA’S RESPONSE

“Dear Mr Carr,

Thank you for your email. As long as legal proceedings are pending in several jurisdictions, Trafigura has a policy of not responding to queries that touch upon these matters. Once all these proceedings are concluded, we can be more communicative. In the meantime, we will continue to provide details of significant legal developments via public statements, which can be found on our website.

Best regards,

Trafigura Press Office”

I assume from this response that Trafigura have no concerns or issues which would prevent my publishing the post.

For completeness I attach my email request to them.

“Dear Mr Cameron and Dear Sirs

I have written a blogpost about the dumping of the Probo Koala waste and the black market in gasoline-type slops.  This post will be published soon after midday on Thursday 6th May.

I would like to have your comments on the post before then so that I can append them to the end of the post.  If I don't receive any feedback from you I will assume that you are happy with the way in which I have represented you and your views and that you are unconcerned about publication.   Please note that I have emailed Dr Gary K Busch and asked him for his feedback.

The post is appended below and this is how it will appear other than correcting typos and adding your and Dr Busch's comments.

I do remind you that on the 27th and 30th April I emailed you about contact between Trafigura and Dr Busch.  I await a reply.

Yours sincerely and faithfully

CalumCarr”

___________________________________________________

THE POST

Trafigura has always been very firm in its defence of the line that they followed all procedures, protocols and laws regarding the removal of waste from the Probo Koala in Abidjan in 2006.  This post does not challenge in any way the legality and completeness of their actions but it does pose the following question:

Should Trafigura and its agents not have foreseen the possibility that their waste would become part of the black market and that the residue from that waste might be dumped illegally?

On 16 September 2008 Trafigura issued a statement about the dumping of waste from the Probo Koala.  The full statement can be read here but below I append an extract:

“The discharge of slops from cargo vessels is a routine procedure that is undertaken all over the world. Abidjan is the largest and most sophisticated port in West Africa, where Trafigura and other oil companies regularly call many times each year to load oil cargoes and de-slop. Abidjan’s port deals with over 30,000 tonnes of slops every year.

In August 2006, an experienced shipping agent in Abidjan nominated Compagnie Tommy to unload the Probo Koala’s slops. Compagnie Tommy was fully licenced by the Ivorian government and authorised by the port to do this work. Trafigura checked the credentials provided and made an independent check with the port authorities. Proper procedures were followed as the slops were removed from the ship, with the written authority of the Ivorian government and the routine presence of port and customs officials.

Consequently, it was unforeseeable that Compagnie Tommy would dump the slops at various sites in Abidjan. [CalumCarr’s emphasis] Their actions were atrocious and illegal.”

A similar statement can be found at the same link but dated 16 September 2009.  There is no need for me to append an extract.

I do not question the bulk of Trafigura’s statement.  Trafigura’s case for not foreseeing is made in the second paragraph; there is no evidence that these checks were not carried out and I accept Trafigura’s words about those checks. 

I do wonder whether Trafigura or their “experienced shipping agent” should have been in a position to foresee that Tommy would (or might) dump the waste around Abidjan. 

My wondering is dependent totally on the accuracy of statements made by Dr Gary K Busch who, until last week, was unknown to me.

Dr Busch – a brief biography can be found here – was very negative about the investigative journalists who jointly won the Daniel Pearl Award but he gave me a link to an article he published on 21 September 2009 – here.  I posted about the article at http://calumcarr.blogspot.com/2010/04/trafigura-case-against-rebutted.html.

There are two key extracts.  Firstly Dr Busch states:

“The plain facts are simple. The Probo Koala contracted with a licensed removal company in the port of Abidjan to take marine slops from the vessel to dispose of them in a clean and environmentally-sound manner. They were asked to produce their government license to perform this task which they showed in advance. The delivery took place and the vessel left. The violators of this pact were jailed for twenty years by an Ivory Coast court.”

In this he takes the same line as Trafigura: all reasonable steps were taken by Trafigura and its agents and the contractor, Compagnie Tommy, bore all moral and legal responsibility.  Having read his entire article I noted a disconnect between the extract above and the words which follow. Dr Busch said,

“The reprocessing of oily slops is a big black market business in Abidjan. There were twenty other ships arriving in Abidjan that year whose oily slops were removed from the vessels. These, too, were to have been incinerated. Instead they were picked up by the local waste oil mob and processed to remove the gasoline from the slops water. This recycled fuel was sold in Abidjan and the waste water dumped in Akuedo and the other dump sites. Unfortunately for the black market oil dealers in Abidjan the Trafigura slops had caustic soda as well. They could not recycle this so they dumped them at the waste sites. They even tried to sell some to a bakery but the end products were too fragrant to sell. This black market is known to everyone in Abidjan, but it is never mentioned. [CalumCarr’s emphasis] An Interpol inspector investigating the dumping of wastes and the massive dumping of refinery wastes from the French-operated refinery was shot and killed in the early days of the investigation in Abidjan.”

Clearly the crucial passage is highlighted.  If everyone in Abidjan knows about the black market should Trafigura or its agents not have known this? 

I should point out that this was not the first time that Dr Busch has written about the black market in the reprocessing of oily slops.

On 10 July 2008 in an article titled, Change without Progress Defines the Ivory Coast he said,

“At the same time there has been no such an enquiry into the fraud, corruption and embezzlement in the petroleum industry. This industry thrives on stolen Nigerian crude oil and an extensive black market in ‘recycled’ petroleum products. [CalumCarr’s emphasis] The case of Trafigura’s alleged dumping of oil waste into Abidjan is a good example. Everyone in the Ivory Coast government and the Port Authority has known that since 1965 there has been a parallel market in petroleum products. [CalumCarr’s emphasis]The slop tanks of incoming vessels are regularly drained and the water waste disposed of, leaving gasoline or diesel residues which are sold in the black market.

There are several companies who specialise in this and several trucking firms who do virtually nothing else. They are supervised (that is they have to pay) government and port officials for turning a blind eye. When this coalition of bandits grabbed a new kind of oil waste form (sic) Trafigura’s ship and tried to process it, they came a cropper in that they couldn’t separate the oil from the water because of a precipitating agent used. They then cut their losses and dumped what they had purloined wherever they thought they could get away with it. The smell was very offensive to many people. The public outrage over this ‘dumping’ by the supposedly qualified agents of the company created such a furore that the company had to ransom its CEO from the local prison with a payment of $200 million. Very little of this windfall has ever been given to the purported ‘victims’ of the waste and this tranche of money is a bone of contention among the political leaders who want their share.”

Here too Dr Busch describes the widespread and well-known black market.

According to their corporate brochure, Trafigura has an office in Abidjan and so a reasonable person might assume that Trafigura would be aware of all relevant local knowledge.

Should Trafigura not have guessed that despite Compagnie Tommy having appropriate licences, authority and other paperwork that there was a major risk that some of the waste would be dumped?  I say, “Yes”, but only if Dr Busch is correct about the black market.

Is Dr Busch correct?

I have issues with him over the accuracy of parts of the article from which the first two extracts are taken but is he correct on this part?  In a private message to me Dr Busch describes himself as a specialist on the politics of the Ivory Coast.  Dr Busch, can you help by showing evidence for your contentions about the black market and how it operates?

But is he correct?  This is crucial.

If Dr Busch is correct, then there are questions for Trafigura.

Did Trafigura know of the black market in gasoline slops and waste at the time of the Probo Koala / Tommy incident?

If YES, then

Why did you follow the letter of the law when you knew that the waste might not be disposed of properly but might follow the black market route?

Do you continue to deslop vessels or dispose of other gasoline–type waste in Abidjan?

If yes, why?

If you continue to deslop vessels or dispose of other waste  - as described above -  in Abidjan do you take any additional precautions now to ensure proper disposal and, if so, what are these precautions?

If you have stopped deslopping in Abidjan when did you stop?

If you have stopped deslopping or disposing of other waste where do you now dispose of this waste?

If NO i.e. Trafigura did not know of the black market in waste / slops at the time of the Probo Koala / Tommy incident – then

Why did you not know when, according to Dr Busch, “the black market is known to everyone in Abidjan”?

Did your local office in Abidjan know of this black market?

If not, should they not have known?

When did you become aware of the black market?

Did you stop deslopping and disposing of other gasoline-type wastes in Abidjan when you became aware of the black market?

If not, why not?

If you continue to deslop vessels or dispose of other waste  - as described above -  in Abidjan do you take any additional precautions now to ensure proper disposal and, if so, what are these precautions?

If you have stopped deslopping in Abidjan when did you stop?

If you have stopped deslopping or disposing of other waste where do you now dispose of this waste?

If Dr Busch is wrong then the basis for this post is fatally flawed.

 

Is Dr Busch correct?  I don’t know …. yet but find out I will.

___________________________________________________

 

COMMENTS OF DR GARY K BUSCH

I have had an extended exchange of emails with Dr Busch and so I append only his first response to my post.  I will post again to report on the clarifications obtained from Dr Busch.  These clarifications, if validated, may alter perceptions of what it is reasonable for Trafigura to have known – in Trafigura’s favour.  We shall see.

The key point in this question is when all the evidence of a black market in recycled slops was known. The answer is that it was unknown to the shippers (and to me) until the events of the Probo Koala became known. There is another company in Abidjan, ITE, who had been handling virtually all the slops disposals in Abidjan. It had storage facilities and an incinerator to process the waste. There had been no evidence of anything improper in the handling of these wastes in the twenty-odd previous ships arriving at Abidjan from May 2005 to July 2006.

When the story of the Probo Koala broke the Ivorian authorities started to investigate the improprieties associated with the black market. The information became known and made available by the drivers who testified that recycling was a common practice. It  then became a public issue. It was the local port agent which had contacted Trafigura to recommend Tommy as a substitute for ITE and tendered all the necessary certificates.

It should be stressed that there was nothing improper about the delivery to Abidjan. The Port Authority was present at the delivery; the various port agents were present as well as the city authorities which is the custom and practice. Not one of these officials who were on board the vessel and in the port raised any queries about the delivery. It was only when the drivers dropped their loads in the dumps (in several cases a few days after the discharge of the vessel) that the problems became known.

Technically, Trafigura's liability for the slops ended as the slops passed through the discharge flange of the vessel. That is the nature of marine discharge regulations. As they passed out of the pipe from the vessel Trafigura had, by marine law and custom,  transferred title and responsibility to the local agent to whom it was consigned. This was supported by the presence of the Port Authority which supervised the transfer and who issued the necessary documentation.

It is unfair and unreasonable  to make the assumption that Trafigura acted improperly in using Tommy as its agent. Tommy was recommended by the local shipping agent and the Port Authorities as a competent handler of these slops. Indeed, the Government agencies had issued Tommy with  certificates showing that Tommy was qualified. The Port Authority officials and Ministry officials  were present throughout the discharge. In the absence of any knowledge, or suspicion, that there was some recycling or black market in slops processing, what more could a company like Trafigura do?

For your guidance I attach a list I compiled from local records of the previous vessels discharging slops in Abidjan. There were no problems with these and no claims of illegal discharge. Why should Trafigura anticipate problems when the previous deliveries of slops were conducted without issue?

MARINE SLOPS DELIVERED TO ABIDJAN May 2005-July 2006

Date Vessel

Quantity

Client Quay Local
Agent
22 May 05 Kyrnikos

152.00

Tacoma Petroci ITE
27 Feb 05 Giacinta

54.50

Addax Petroci ITE
20 Mar 05 Chem Oceania

51.00

Addax Petroci ITE
19 Apr 05 Zhong Hoa

82.00

Addax Petroci ITE
29 Apr 05 Chem Oceania

47.00

Addax Petroci ITE
21 May 05 Asprey

71.50

Addax Petroci ITE
02 Jun 05 Conny

80.00

Ocean Oil Petroci ITE
23 Jul 05 Chem Oceania

152.00

Addax Petroci ITE
27 Jul 05 Algonquin

67.00

Trafigura Petroci ITE
7 Sep 05 Chem Biscay

45.25

Addax Petroci ITE
13 Sep 05 Tradewind Explorer

115.00

Addax Petroci ITE
01 Oct 05 Asprey

91.00

Addax Petroci ITE
24 Oct 05 Akti-N

40.00

Trafigura Petroci ITE
19 Nov 05 Zhong Hua

84.00

Addax Petroci ITE
30 Nov 05 Zhong Hua

9.60

Addax Petroci ITE
1 Dec 05 Asprey

68.00

Addax Petroci ITE
12 Jan 06 Zhong Hua

67.00

Addax Petroci ITE
27 Jan 06 Tradewind Explorer

191.00

Addax Petroci ITE
23 Feb 06 Tradewind Explorer

127.50

Addax Petroci ITE
24 Mar 06 Chem Biscay

77.00

Addax Petroci ITE
08 Apr 06 Chem Biscay

80.00

Addax Petroci ITE
09 Apr 06 Asprey

73.50

Addax SIAP ITE
09 May 06 Tradewind Explorer

20.00

Addax Petroci ITE
13 Jun 06 Songa Anne

153.70

Shell (Stasco) Petroci ITE
14 Jun 06 Chem Biscay

102.50

Addax SIAP ITE
24 Jun 06 Asprey

72.00

Addax SIAP ITE
21 Jul 06 Port Louis

150.60

Trafigura SIAP ITE
22 Jul 06 Chem Biscay

56.00

Addax Petroci ITE

 

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