Trafigura lawsuits (re Côte d’Ivoire)

Toxic Waste, By:Fernost, Creative Commons Pour la version française de ce profil, cliquez ici.

On 19 August 2006 the ship Probo Koala unloaded a waste shipment at Abidjan, Côte d’Ivoire (Ivory Coast).  This waste was disposed of at open air sites around Abidjan.  The ship was chartered by the London office of Trafigura, a Dutch international petroleum trader.  The Probo Koala had attempted to discharge this waste at the port of Amsterdam, but the port service would not accept the waste without an additional handling charge because of the waste’s alleged toxicity.  The ship left the port of Amsterdam without discharging its waste.  After the waste from the ship was discharged in Abidjan, people living near the discharge sites began to suffer from a range of illnesses (nausea, diarrhea, vomiting, breathlessness, headaches, skin damage, and swollen stomachs).  Sixteen people have died, allegedly from exposure to this waste, and more than 100,000 have sought medical attention.

Trafigura sent two of its executives to Abidjan in August 2006 to investigate what happened.  These executives and a representative from a Trafigura subsidiary, Puma Energy, were arrested by Ivorian authorities and imprisoned.  On 12 February 2007 the Government of Côte d’Ivoire signed a settlement agreement with Trafigura in which the company agreed to pay $198 million to the Ivorian government for a compensation fund, the construction of a waste treatment plant and to assist in the recovery operations.  However, the company stressed this payment was not "damages" and that it did not admit liability.  Côte d’Ivoire agreed to drop any prosecutions or claims, now or in the future, against Trafigura.  After this settlement agreement was made, the Trafigura executives and the Puma Energy representative were released from prison.

Claims in the United Kingdom

Probo Koala shipIn November 2006, the High Court of Justice in London agreed to hear a group action by about 30,000 claimants from Côte d’Ivoire against Trafigura over the alleged dumping of toxic waste from the Probo Koala.  Applicants alleged that the waste had high levels of caustic soda, as well as a sulphur compound and hydrogen sulphide making it hazardous waste as defined by the Basel Convention on the Control of Transboundary Movements of Hazardous Wastes.  

Trafigura denied the waste was toxic and claimed the waste was standard waste from onboard operations of ships (“slops” as defined by the International Convention for the Prevention of Pollution From Ships).  Trafigura was alleged to have shipped the untreated chemical waste to Côte d’Ivoire with knowledge that there were no facilities to treat it.  Trafigura denied responsibility, stating that they had entrusted the waste to an Ivorian disposal company, Tommy, which was established a few weeks before the ship’s arrival.  Trafigura claimed it had no grounds for suspecting that Tommy would improperly dispose of the waste.  Trafigura denied the number of applicants/victims and stated that only 69 people suffered significant injury.  On 23 March 2009, the court granted the plaintiffs a temporary injunction barring Trafigura from contacting any of the claimants in the case.  This injunction came after counsel for the claimants presented evidence that the company had been contacting individual claimants urging them to change their sworn statements.  

In September 2009, the parties to the UK lawsuit reached a settlement agreement in which Trafigura agreed to pay each of the 30,000 claimants a certain amount, approximately $1500.  The parties released a joint statement that said, among other things, "independent experts are unable to identify a link between exposure to the chemicals released from the slops and deaths, miscarriages, still births, birth defects, loss of visual acuity or other serious and chronic injuries. Leigh Day and Co, in the light of the expert evidence, now acknowledge that the slops could at worst have caused a range of short term low level flu like symptoms and anxiety".

In October 2009 an individual, Claude Gohourou, came forward claiming to represent the victims through his organization - National Coordination of Toxic Waste Victims of Côte d’Ivoire.  Mr Gohourou succeeded in freezing the bank account in which the settlement funds were being held.  The claimants' lawyers dispute the authenticity of this organization and Mr Gohourou's authority to distribute the funds to the claimants.  On 22 January 2010, the Court of Appeals in Abidjan ruled in favour of Mr Gohourou and his organization and ordered the settlement funds be transferred to him.  In mid-February 2010 the parties reached an agreement about the distribution of the settlement funds.  However, 6000 of the victims still have not received the compensation.

In June 2016, the High Court ruled that Leigh Day, the law firm representing the victims, should compensat the victims that had not received compensation due to the breach of its its duty of care.  Leigh day declared: "...were devastated when some of the monies were misappropriated. We did our damnedest to recover the monies resulting in the great majority of our clients having received their compensation."

Claims in the Netherlands

In February 2008, Dutch prosecutors served notice that they intend to file criminal charges against Trafigura, among others, for its alleged part in the disposal of waste in Côte d’Ivoire.  In June 2008 an Amsterdam court began hearing evidence in this case.  The Dutch trial started in June 2010.  

The Dutch prosecutors accused Trafigura of illegally exporting hazardous waste to Côte d’Ivoire.  The allegations against the company are that it breached Dutch export and environmental laws as well as forging official documents.  Trafigura rejected these charges.  In July 2010 the Dutch court ruled that the company had concealed the dangerous nature of the waste aboard the Probo Koala and fined the company €1 million.  The Dutch court also convicted a Trafigura employee and the Ukrainian captain of the Probo Koala for their roles in the matter. 

In the meantime, Greenpeace filed a complaint with the Court of Appeal in The Hague trying to compel the public prosecutor to prosecute the company for more than just the export of hazardous waste.  In April 2011, the appeal court ruled that the public prosecution department is not required to prosecute Trafigura for the dumping of the waste in Côte d’Ivoire. 

When the regional court in Amsterdam decided in 2008 not to prosecute Trafigura's co-founder and director Claude Dauphin, the prosecutors appealed the court's decision.  They were turned down and later lodged another appeal before the Supreme Court, which sent the case back to the appeals court in Amsterdam to review the original decision.  In January 2012, the court decided that Claude Dauphin can be prosecuted for the alleged illegal export of waste by Trafigura.  In November 2012 the Dutch Public Prosecutor's Office and Trafigura reached an out-of-court settlement.  Trafigura agreed to pay €300,000 compensation and paid a €67,000 fine in return for the withdrawal of the case against Claude Dauphin.

In February 2015, lawyers representing 110,937 Ivorians sent a summons to Trafigura in respect of a new lawsuit. The lawsuit alleges that Trafigura caused " bodily, moral and economic injury...to the plaintiffs," and requests that Trafigura pay each claimant 2,500 euros in compensation, as well as cleaning up the waste.  In November 2016, a Dutch court rejected the claim by a foundation representing them, finding that the foundation did not establish that the claim was in the best interests of the affected Ivorians.

Claims in France

In July 2008, three French victims of the Probo Koala incident filed a complaint against Trafigura before an examining magistrate in Paris alleging corruption, involuntary homicide and physical harm leading to death.  

- Court finds Leigh Day breached duty of care to Trafigura claimant, John Hyde, Law Society Gazette (UK)
- "100,000 victims of Ivory Coast toxic spill launch Dutch suit", Yahoo News, 20 Feb 2015
- "Dutch Probo Koala toxic waste cases finally settled out of court", DutchNews.nl, 16 Nov 2012
- "Trafigura lessons have not been learned, report warns", Fiona Harvey, Guardian [UK], 25 Sep 2012
- "Trafigura director can be prosecuted says Dutch court", Expatica, 30 Jan 2012
- "Trafigura fined €1m for exporting toxic waste to Africa", Rob Evans, Guardian [UK], 23 Jul 2010
- "Fear over Ivory Coast ruling on Trafigura waste pay-out", BBC News, 22 Jan 2010
- "Trader Trafigura settles Ivorian waste case", Loucoumane Coulibaly & Reed Stevenson, Reuters, 20 Sep 2009
- "Oil company accused of 'nobbling' witnesses in African toxic waste case", Frances Gibb, Times [UK], 24 Mar 2009
- "Ivory Coast turns to UK in class action over toxic waste", Times [UK], 4 Jun 2008
- "Update: Trafigura To Pay Ivory Coast EUR7.6M Over Toxic Waste", Lananh Nguyen, Dow Jones Newswires, 17 Apr 2008
- "Dutch plan to charge Trafigura over toxic ship", Reuters, 19 Feb 2008
- "Côte d'Ivoire toxic waste probe goes to France", afrol News [Lesotho], 26 Jul 2007
- "Toxic waste deal won't halt case", BBC News, 15 Feb 2007
- [FR] "Déchets toxiques : Trafigura dédommage la Cote d’Ivoire mais nie toute responsabilité", Véronique Smée, Novethic, 14 Feb 2007
- "UK action over 'toxic waste' case", BBC News, 2 Feb 2007
- "Neglect and Fraud Blamed for Toxic Dumping in Ivory Coast", Lydia Polgreen, New York Times, 24 Nov 2006
- "Global Sludge Ends in Tragedy for Ivory Coast", Lydia Polgreen & Marlise Simons, New York Times, 2 Oct 2006

- Trafigura : Probo Koala updates
- Trafigura: Amnesty International Report, 27 Sep 2012
- [PDF] Trafigura & Leigh Day: Agreed Final Joint Statement, 19 Sep 2009
- Leigh Day [counsel for plaintiffs]: International Claims - Ivory Coast 
- Leigh Day: Victims of toxic waste in despair at court ruling, 22 Jan 2010
- Amnesty International & Greenpeace: [PDF] The Toxic Truth, 25 Sep 2012
- Sherpa: [PDF] Probo Koala: A catastrophe emblématique, justice exemplaire, 9 Jul 2008
- [FR] Commission internationale d’enquête sur les déchets toxiques dans le District d’Abidjan [établie par le Gouvernement de Côte d’Ivoire] : [DOC] Rapport de la commission internationale d'enquete sur les dechets toxiques deverses dans le district d'Abidjan, 19 Feb 2007

- [FR] Fédération Internationale des Ligues des Droits de l’Homme (FIDH): Affaire des déchets toxiques : une transaction au détriment de la justice et de la réparation pour les victimes, 16 Feb 2007
- Greenpeace International: Toxic Waste in Abidjan : Greenpeace Evaluation, 15 Sep 2006

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Article
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Author: Amnesty International

La décision d'un tribunal ivoirien de transférer les 45 millions de dollars d'indemnisation destinés aux victimes du déversement de déchets toxiques de l'entreprise Trafigura à un groupe prétendant abusivement représenter ces personnes, est une parodie de justice...« La décision qui a été prise aujourd'hui constitue un déni de justice pour les victimes de ce déversement désastreux de déchets toxiques », a déclaré Widney Brown, directrice générale chargée du droit international et de la stratégie politique à Amnesty International. « Nous demandons que la décision du tribunal ne soit pas mise immédiatement à exécution afin que l'argent ne disparaisse pas avant que les victimes n'aient pu interjeter appel devant la Cour suprême. »... Martyn Day [le principal avocat des victimes, a déclaré] « Je n'ai pas vu en trente ans de carrière de décision de justice plus déprimante que celle-ci. Trente mille Ivoiriens attendaient l'indemnisation qui leur était due. Il y a de fortes chances désormais qu'ils n'en voient pas la couleur ».

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Article
22 January 2010

Fear over Ivory Coast ruling on Trafigura waste pay-out

Author: BBC News

A court in Ivory Coast has ruled that $45m (£28m) due to 30,000 alleged victims of dumped waste should be distributed by a local activist. Claimants' lawyers expressed doubts about whether the activist, Claude Gohourou, would pass on the money. Mr Gohourou's association said fraud was more likely if the lawyers handled the money. The case concerns 500 tonnes of chemical waste brought to Ivory Coast by multi-national oil company Trafigura and dumped around Abidjan by a local contractor in 2006. Trafigura agreed last year to pay people who said they had been made ill by the waste…[The ruling] overturns an earlier ruling that Mr Gohourou should not distribute the payments, and claimants' lawyers said they would appeal.

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Article
22 January 2010

Victims of Toxic waste Despair as Ivory Coast Court of Appeal Orders Transfer of Compensation Monies

Author: Leigh Day & Co

This morning the Court of Appeal in Abidjan ordered that the compensation monies held in the Leigh Day account...be transferred to the account of Mr Claude Gouhourou. The 30,000 victims who were due to receive their compensation are now beside themselves with worry that they will not receive the compensation they were entitled to under the terms of the settlement reached with Trafigura in...September 2009...Mr Gouhourou...was one of the fifty or so representatives of the many communities in Abidjan affected by the toxic waste. In his evidence he stated that he and the other representatives had set up a coordinating association of which he was the president and that this association had the responsibility for distributing the compensation monies. The documents provided by Mr Gouhourou to prove his case have been shown since this time to be false. The other representatives all deny the existence of any such association...Leigh Day's lawyers are immediately looking to lodge an appeal but there is every concern that Mr Gouhourou will try and have the money transferred before that happens...Martyn Day, senior partner at Leigh Day said today: 'In 30 years of practice I cannot remember a more depressing Court decision...'

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Article
12 January 2010

Submission to European Commission regarding Brussels I Regulation (EC 44/2001)

Author: CORE Coalition

CORE, Leigh Day & Co, The TUC, Amnesty International, Rights & Accountability in Development (RAID), One World Action, Global Witness and The Cornerhouse wrote to the European Commission, raising concerns regarding the UK Government’s position in relation to the European Court of Justice ruling in Owusu v Jackson…CORE believe any reversal of the Owusu ruling would be a significant step back for corporate accountability. This ruling has been essential in enabling justice to be carried out in relation to such cases such as those against Trafigura, BP (Colombia) and Monterrico (Peru); unimpeded by the enormous delay, cost and aggravation experienced in the cases against eg Cape PLC (5 years spent on fnc, during which time 1000 claimants died).

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Article
1 January 2010

[PDF] Review of the Brussels I Regulation

Author: CORE Coalition, Leigh Day & Co, The TUC, Amnesty International, Rights & Accountability in Development (RAID), One World Action, Global Witness and The Cornerhouse

...[I]n March 2007, the European Parliament passed a resolution on Corporate Social Responsibility...This submission...is prompted in particular by the submission of the Ministry of Justice of the UK...[whose] proposal is, in effect, an attempt to turn back the clock and reintroduce into the Brussels I Regulation the doctrine of forum non conveniens, or some equivalent mechanism, effectively reversing the decision of the European Court of Justice in Owusu v Jackson...Our experience...leads us vigorously to oppose the Ministry’s suggestion...[A] reversal of [the Owusu] decision...would, in particular, seriously impact on the ability of overseas human rights victims to obtain access to justice in the European Union against multinationals domiciled in the EU. [refers to cases against BP, Cape PLC, Monterrico Metals (part of Zijin), RTZ Corporation (now Rio Tinto), Thor Chemicals, Trafigura]

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Article
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Author: Amnesty International

Amnesty International [a adressé au Ministre ivoirien de la Justice et des Droits de l'homme] une lettre ouverte pour...faire part de sa vive crainte qu'il ne soit actuellement tenté de spolier près de 30 000 personnes, victimes de violations des droits humains liées au déversement de déchets toxiques de 2006 à Abidjan, de l'indemnisation qui leur est due aux termes de l'accord conclu avec Trafigura devant la justice britannique. Amnesty International était en particulier inquiète face aux informations selon lesquelles la Coordination Nationale des Victimes de Déchets Toxiques de Côte d'Ivoire (CNVDT-CI), une organisation qui prétend abusivement représenter toutes les victimes dans cette action en justice, a demandé au Tribunal de Première Instance d'Abidjan de transférer sur son compte le montant de cette indemnisation, qui s'élève à 31 millions de livres sterling...[Pour l'organisation], il s'agit là d'une tentative flagrante de détournement de fonds...

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Article
18 December 2009

Côte d’Ivoire must stop attempt to defraud toxic waste dump victims

Author: Amnesty International

An attempt to defraud victims of the Trafigura toxic waste dump disaster out of $45 million must be stopped, Amnesty International said...An organization known as the National Coordination of Toxic Waste Victims of Côte d’Ivoire (CNVDT-CI) is falsely claiming to represent some 30,000 victims who brought a court case against Trafigura in the UK. The organization has applied for the $45 million compensation owed to the victims to be transferred to its bank account. CNVDT-CI will today appeal a decision in the Ivorian courts that blocked it from receiving the compensation...In an open letter to Côte d’Ivoire’s Minister of Justice...Amnesty International said...it as a “blatant attempt to perpetrate fraud”. [includes link to the full "Open letter to the Ivorian Minister of Justice"]

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Article
17 December 2009

BBC settles Trafigura libel case

Author: David Leigh, Guardian [UK]

The BBC…made what it presented as a tactical climbdown in its libel battle with the oil trading company Trafigura. After negotiations with Trafigura director Eric de Turckheim…, the broadcaster agreed to apologise for a Newsnight programme, pay £25,000 to charity, and withdraw any allegation that Trafigura's toxic waste dumped in Africa had caused deaths. But at the same time, the BBC issued a combative statement, pointing out that the dumping of Trafigura's hazardous waste had led to the…oil trader being forced to pay out £30m in compensation to victims. De Turckheim issued his own statement…, repeating the contentious claim that "The slops were... dumped illegally by an independent company called Compagnie Tommy – a deplorable action which Trafigura did not and could not have foreseen."

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Article
17 December 2009

[PDF] BBC apologises to Trafigura

Author: Trafigura

The BBC has today apologised in Court to Trafigura, the leading commodities trader, over false allegations made in May of this year on Newsnight and in a related website article. The BBC will broadcast a further apology during this evening’s edition of Newsnight and publish the Court statement on its website. As well as apologising, the BBC has agreed to pay £25,000 in damages (which Trafigura will donate to charity), in addition to Trafigura’s legal costs.

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Article
17 December 2009

[PDF] Trafigura Limited and British Broadcasting Corporation - Statement in Open Court

Author: Trafigura & BBC

[Full text of statement read in open court by counsel for Trafigura and counsel for BBC in libel lawsuit brought by Trafigura against BBC.]

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