184
Amnesty international and greenpeace netherlands
endnotes
76.
Internal Trafigura Background document, pp1, 2 available at images.volkskrant.com/volkskra/ upload/ftp/nieuws/binnenland/trafigura2.pdf (accessed at 4 April 2012).
77.
Minton, Treharne & Davies Ltd, “Minton report”, 14 September 2006, available at file.wikileaks. org/file/waterson-toxicwaste-ivorycoast%C3%A92009.pdf (accessed 26 October 2011).
78.
Amnesty International English translation of verdict on Trafigura Beheer BV, LJN (National Case Law Number): BN2149, District Court of Amsterdam, 13/846003-06 (PROMIS), para 8.3.2.8.
88.
89.
79.
Email from the Master of the Probo Koala to Falcon Navigation dated 15 April 2006 (rec# 13228, Yao Essaie Motto & Others v Trafigura Limited and Trafigura Beheer BV in the High Court of Justice, Queen’s Bench Division, Claim No. HQ06X03370): “GOOD AFTERNOON CPT, GLAD TO ADVISE YOU [THE MASTER OF Probo Koala] THAT THE CAUSTIC SODA WASHING WAS SUCCESSFUL.”
80.
Emails between Trafigura and Univar dated 6 April 2006 (US Files).
81.
Email from Falcon Navigation to the Master of Probo Koala dated 15 April 2006 (rec# 13228 Yao Essaie Motto & Others v Trafigura Limited and Trafigura Beheer BV in the High Court of Justice, Queen’s Bench Division, Claim No. HQ06X03370).
82.
See infographic on p30/31 (the infographic is based on the map displayed in Amsterdam court room developed by Dutch police.
83.
Internal Trafigura memorandum dated 23 September 2006, p1: “the vessel had taken three consecutive gasoline blendstock cargoes”.
90.
International Convention for the Prevention of Pollution from Ships, 1973, as modified by the Protocol of 1978 relating thereto (MARPOL). Under the MARPOL Convention, to which the Netherlands is a party, states have an obligation to provide adequate port reception facilities for wastes generated during the normal operation of ships – Annex I, Regulation 12.
96.
See: www.imo.org/mediacentre/pressbriefings/ pages/19-msc-90-.aspx.
97.
MARPOL Convention to which the Netherlands is a party. States have an obligation to provide adequate port reception facilities for wastes generated during the normal operation of ships – Annex I.
According to Trafigura, Naeem Ahmed told APS that the slops originated from gasoline washing, with the aid of caustic soda, on board the Probo Koala. He also allegedly indicated how much caustic soda had been used during the process, and how much was present in the slop tanks. Trafigura Amended Defence 5 December 2008 (Yao Essaie Motto & Others v Trafigura Limited and Trafigura Beheer BV in the High Court of Justice, Queen’s Bench Division, Claim No. HQ06X03370) para 64 “On 19 June 2006, Naeem Ahmed of TL contacted APS by telephone and explained to Mr Vonk of APS that Trafigura had a vessel that had been performing caustic washing operations on Naphtha. Mr Ahmed told Mr Vonk that caustic soda and a catalyst had been added to remove mercaptans. As a result, the slops had a concentration of mercaptan sulphur.”
98.
Basel Convention, Article 2(1).
99.
Directive 2000/59/EC of the European Parliament and of the Council of 27 November 2000 on port reception facilities for ship-generated waste and cargo residues, Article 2.
Indeed, when later called to give evidence at the Dutch criminal trial, two APS executives stated “emphatically” that this was not the case and that, in fact, Trafigura’s request involved gasoline washing water (gasoline tank washings), a product that came into APS on a daily basis. APS testified that they would have embarked on an entirely different procedure if Naeem Ahmed, Trafigura’s London-based executive, had told them how the waste had originated. Furthermore, one of the executives stated that he had asked Ahmed to confirm his request for a quotation by email, and the contents of this email that was subsequently sent corresponded to the request made by telephone. Amnesty International English translation of verdict on Trafigura Beheer BV, LJN (National Case Law Number): BN2149, District Court of Amsterdam, 13/846003-06 (PROMIS), para 8.3.3.2.
84.
Amnesty International interview, Abidjan, Côte d’Ivoire, February 2009.
85.
Amnesty International English translation of verdict on Trafigura Beheer BV, LJN (National Case Law Number): BN2149, District Court of Amsterdam, 13/846003-06 (PROMIS), para 5.8.
91.
Evidence overview Trafigura Beheer BV, N. Ahmed, S. Chertov, p42, English translation: “It appeared that Malta shipyards does did not wish to receive the slops waste from Probo Koala on board PK” on April 10, 2006 (email).
Amnesty International English translation of verdict on Trafigura Beheer BV, LJN (National Case Law Number): BN2149, District Court of Amsterdam, 13/846003-06 (PROMIS), para 8.3.3.3.
92.
Under European law, waste with a low flashpoint is considered to be hazardous waste. Under annex III of Directive 91/689/EEC on hazardous waste, waste substances with a flashpoint of less than 55ºC qualify as hazardous waste.
Internal Trafigura email dated 20 June 2006 (rec# 7696 Yao Essaie Motto & Others v. Trafigura Limited and Trafigura Beheer BV in the High Court of Justice, Queen’s Bench Division, Claim No. HQ06X03370).
93.
Notification of ships’ waste and (remainders of) noxious substances – Hulshof Report of Findings, from the investigation into the state of affairs around the arrival, stay and departure of the Probo Koala, 30 November 2006, p9 and rec# 10130 Yao Essaie Motto & Others v Trafigura Limited and Trafigura Beheer BV in the High Court of Justice, Queen’s Bench Division, Claim No. HQ06X03370.
86.
87.
Amnesty International English translation of verdict on Trafigura Beheer BV, LJN (National Case Law Number): BN2149, District Court of Amsterdam, 13/846003-06 (PROMIS), para 5.8. Evidence overview Trafigura Beheer BV, N. Ahmed, S. Chertov, p42, English translation: “It appeared that Malta shipyards does did not wish to receive the slops waste from Probo Koala on board PK” on April 10 2006 (email).
94.
Statement published by Trafigura on its website www.trafigura.com/our_news/probo_koala_updates.aspx (accessed May 2012).
95.
MARPOL Convention, Annex I.
100. Council Regulation (EEC) No 259/93 of 1 February 1993 on the supervision and control of shipments of waste within, into and out of the European Community. 101. Amnesty International English translation of verdict on Trafigura Beheer BV, LJN (National Case Law Number): BN2149, District Court of Amsterdam, 13/846003-06 (PROMIS), para 5.15. Internal Trafigura memorandum dated 23 September 2006 para 6, p3. 102. Amnesty International English translation of verdict on Trafigura Beheer BV, LJN (National Case Law Number): BN2149, District Court of Amsterdam, 13/846003-06 (PROMIS), para 5.18. 103. Probo Koala in Amsterdam, feitenrelaas en relevante wetgeving”, VROM-Inspectie 31 oktober 2006. Report National Environmental Inspectorate ‘Probo Koala in Amsterdam, overview of facts and relevant legislation p19 at https:// zoek.officielebekendmakingen.nl/kst-22343146-b1.pdf. 104. See: UK Health Protection Agency, Compendium of Chemical Hazards: Hydrogen Sulphide, 2011, at www.hpa.org.uk/webc/HPAwebFile/ HPAweb_C/1246260029655 and Hydrogen Sulfide Safety Factsheet, www.safetydirectory. com/hazardous_substances/hydrogen_sulfide/ fact_sheet.htm. 105. Bewijsoverzicht Amsterdam Port Services BV, E.M.Uittenbosch Feit 2: artikel 10.1 Wm Amsterdam 15 juni 2010, l.W. Boogert en R.S. Mackor Officieren van Justitie, p17. 106. Amnesty International English translation of verdict on Trafigura Beheer BV, LJN (National Case Law Number): BN2149, District Court of Amsterdam, 13/846003-06 (PROMIS), para 5.20, 5.22. 107. Bewijsoverzicht Amsterdam Port Services BV, E.M.Uittenbosch Feit 2: artikel 10.1 Wm Amsterdam 15 juni 2010, l.W. Boogert en R.S. Mackor Officieren van Justitie, p24. 108. Evidence Overview for Trafigura Beheer BV, N Ahmed, S Chertov, pp37, 38. Facts: Section 174 of the Dutch Penal Code and Section 225 of the Dutch Penal Code. 109. Amnesty International English translation of verdict on Trafigura Beheer BV, LJN (National Case Law Number): BN2149, District Court of Amsterdam, 13/846003-06 (PROMIS), para 5.22.