Newsnight Enquiries - 16 September 2009
As you might anticipate, Trafigura is concerned to note that the BBC is proposing to revisit these matters bearing in mind that they are, as you know, the subject of ongoing libel proceedings.
It is noteworthy that the BBC's Defence in those proceedings does not even purport to suggest that the Newsnight broadcast or BBC website article in May of this year constituted responsible journalism (which they clearly were not). Unsurprisingly, therefore, Trafigura can be forgiven for assuming that the BBC will approach any further broadcast in similar fashion.
Be that as it may, we have always made clear that Trafigura has always accepted that the Probo Koala incident is a matter of public interest, and accordingly in the hope that the BBC does choose to adopt an even-handed approach to any further broadcast, we are instructed to address the matters you raise as follows.
On an opening note, we see that the purported premise of this further broadcast is the publication of a report by the UN Special Rapporteur. In this vein we enclose a copy of a press release which Trafigura has issued in relation to the report; we also enclose the detailed response dated 13 August 2009 which Trafigura submitted to the Special Rapporteur on 14 August 2009, and a further response which we understand will be included in the UNHRC case file. Needless to say, insofar as the BBC is proposing to refer to Professor Ibeanu's report, it is incumbent upon you to ensure that Trafigura's response to the report is reflected in full in any broadcast.
Before turning to the specific queries which you raise, we enclose for your information a copy of the Agreed Joint Statement on behalf of both parties to the Personal Injury proceedings in the High Court in London.
Turning to your queries:-
The slops from the Probo Koala contained a mixture of water, components of gasoline, spent caustic soda with a small quantity of catalyst.
You appear to have chosen to rely selectively on a number of emails, individually and out of context, an obvious example being the "(mis)quotes"attributed to Graham Sharp.
On a general note, with regard to Trafigura's proposals for handling the treatment and disposal of the slops, Trafigura always sought to comply with the laws and regulations of the jurisdictions in which it operates. Indeed, on a proper analysis of what happened in this case, it is clear that the responsible individuals at Trafigura sought at all times to ensure that the slops were disposed of lawfully.
As regards the legality of caustic washing, in 2006 caustic washing was being widely undertaken, including in refineries. For example, please refer to the "Hydrocarbon Processing - Refining Processes Handbook 2006" that records some 1600 licensed Merox units worldwide that were using the same caustic soda/catalyst processes.
Trafigura accepts that the chemical composition of the slops was as per annex 13 to Trafigura's Amended Defence in the Personal Injury Proceedings, dated 5 December 2008, with which the BBC is no doubt familiar. Trafigura accepts that the results of the NFI report represent the best evidence available as to the likely composition of the slops.
The slops were not discharged in Nigeria as it was clear that there were insufficient facilities in place to receive them. The reason and the length of stay of the vessel in Lagos are set out in full in Trafigura's Defence in the Personal Injury proceedings.
We assume that you are referring to an email dated 16 August 2006. It is important to place this in its proper context. As with a number of the emails, this is simply "trader talk." The suggestion apparently contained in this email was never seriously considered. Furthermore, and for the avoidance of doubt, you have misinterpreted the email in that it was most certainly not reporting any such suggestion as having been made by Mr Dauphin.
Trafigura has always made clear that the Probo Koala was not sent to West Africa in order to dispose of the slops; on the contrary, the vessel was returning from a routine commercial voyage to deliver gasoline to Lagos; Abidjan was a port on this route.
Your question, like the broadcast in May, betrays a basic misunderstanding of the position and in particular of the composition of the "slops".
In its May 2009 broadcast, the BBC chose fundamentally to misinterpret the NFI report and then positively misrepresented it as suggesting that the slops contained (and, it was therefore suggested, released) two tonnes of hydrogen sulphide. As any suitably qualified chemist would confirm, that was, and remains, an utter travesty of the correct position. What in fact the NFI report confirmed is that in practice the measurement was not of hydrogen sulphide but of potential hydrogen sulphide that would be released should the aqueous slops come into contact with acid in very substantial quantities.
As you will appreciate, Trafigura has instructed no fewer than ten expert witnesses in the Personal Injury proceedings, including on such issues as chemistry and toxicology. As you will also appreciate, those experts are wholly independent and owe very strict duties to the Court.
Against that background you should be aware that the independent expert chemistry evidence commissioned by Trafigura can, insofar as it is relevant to the matters you raise, be summarised as follows:
That the best evidence available shows that the slops were highly alkaline (pH14).
In such alkaline conditions, hydrogen sulphide would simply not have existed in molecular form.
There is no evidence to suggest that the conditions in the Côte d'Ivoire were sufficiently acidic to effect a change in the slops that would mean that the slops would generate hydrogen sulphide at levels that could have caused the deaths and serious injuries alleged by the BBC.
You say that you have obtained evidence that suggests that some of the "deceased victims" had high levels of hydrogen sulphide in their organs.
Unsurprisingly, in light of the fundamental point made above, it is Trafigura's position that insofar as it is suggested that these individuals died as a result of hydrogen sulphide exposure, that hydrogen sulphide cannot have come from or been generated or caused by the Probo Koala slops.
Indeed, there is, to say the least, clearly very serious cause to doubt whether the individuals in question did in fact die as a result of hydrogen sulphide exposure (still less due to any hydrogen sulphide contained in or generated/emitted by the Probo Koala slops). The autopsies on the corpses referred to by the BBC in its Defence do not appear to have been conducted until between three and nine months after the relevant events, and after putrefaction had set in. Given that it is universally accepted that hydrogen sulphide is generated by the decomposition process, we understand that the most likely assessment of the results reported concerning hydrogen sulphide in the autopsy reports is, therefore, that they are the result of post-mortem decomposition of otherwise healthy tissue. As such they simply do not support your allegations that the Probo Koala slops caused any deaths.
So far as compensation is concerned, Trafigura had no involvement in its distribution, and it has consistently been made clear that the payment to the Ivorian state was made without any admission of liability.
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All statements made for and on behalf of Trafigura since the Probo Koala incident have been made entirely in good faith, invariably in the face of recklessly inaccurate and misinformed allegations (including by the BBC) as to the effects which the slops could possibly have had on the health of the local population. The fact is that Trafigura sought at all times to ensure that the discharge of the slops from the Probo Koala was conducted lawfully. Furthermore, and as we make clear above, the slops simply could not have caused the deaths and serious injuries alleged by the BBC (among others). Trafigura continues to stand by this position
The settlement involved no admission of liability. Trafigura believed that the settlement was the best way for the people of Abidjan, the Ivorian government and Trafigura to move forward.