25.1 On 20 March 2003, the incursion into Iraq commenced. The same day, AWB issued a media release stating that it had suspended discharge of wheat. Mr Lindberg was quoted as saying:
AWB currently has two wheat shipments, carrying 100,000 tonnes of wheat, destined for Iraq and has contingency plans in place to deal with these shipments.[400]
The two shipments were on the ships Pearl of Fujairah and Andromeda. Both were shipments under contract A1441, which had been concluded in June 2002. [401]
During March and April 2003, AWB prepared 'Iraq Situation Reports' on a daily basis. Many of these are referred to below.
25.2 On 28 January 2003, AWB applied for permission to export approximately 56,000 tonnes of wheat to Iraq on the Andromeda. The application stated that the shipment was to be under contract A1441. [402] Permission to export was granted by DFAT that day.[403]
25.3 On 10 February 2003, AWB applied for permission to export approximately 57,000 tonnes of wheat to Iraq on the Pearl of Fujairah. This application also stated that the shipment was to be under contract A1441.[404] DFAT granted permission to export that day.[405]
25.4 On 21 February 2003, the Pearl of Fujairah completed loading and a bill of lading was issued. [406] It named IGB as the consignee and Umm Qasr as the port of discharge.
25.5 On 2 March 2003, two bills of lading were issued in respect of the cargo loaded onto the Andromeda. One bill of lading was for the shipment of grain to Iraq. It named IGB as the consignee and Umm Qasr as the port of discharge.[407] The other bill of lading was in respect of a small parcel of wheat that was to be delivered to another purchaser in Oman.[408] Although the Andromeda was scheduled to leave Australia and arrive at Umm Qasr before the Pearl of Fujairah, it was delayed at the load port due to a dispute about the quality of the cargo. [409]
25.6 AWB and IGB agreed that the inland transportation fees under contract A1441, calculated at a rate of €48.53 per metric tonne, would be '100% payable prior to vessel discharge.' [410] On 14 March 2003, in expectation of the imminent arrival of the Pearl of Fujairah at Umm Qasr, AWB paid €2,471,522.25 to Alia. This represented payment in full of the inland transportation fees for the Pearl of Fujairah shipment. [411] By 20 March 2003, AWB had not paid the inland transportation fees payable in respect of the shipment on the Andromeda.
25.7 On 16 March 2003, the Pearl of Fujairah arrived at the inspection point off the port of Umm Qasr. [412]
On 17 March 2003, Mr Wall (AWB Chartering) received a facsimile from the owners of that vessel which stated:
As charterers will be aware, a grave situation presently exists in the area of Umm Qaser which situation is materially different from that contemplated at the time of the fixture being entered into. Presently, a US led attack on Iraq, appears imminent. In the current circumstances owners are of the view that the berths of Umm Qaser are unsafe for the vessel to proceed to and discharge her cargo at.
In the light of the above and pursuant to clause 42 of the charter party, Charterers are requested to provide urgent instructions for discharge of the cargo at an alternative safe port and berth.
We look forward to hearing from you urgently. [413]
25.8 On 17 March 2003, Mr Whitwell emailed Mr Abdul-Rahman at IGB:
Following our telephone conversation please note that despite the difficulties in chartering vessels for Umm Qasr we are determined to continue supplying our contractual commitments to you. [414]
25.9 On 18 March 2003, Mr Abdul-Rahman emailed Mr Whitwell and requested that AWB 'enter the vessel Pearl of Fujairah to Umm Qasr'. [415] That day, Ms Lyons (of AWB Legal) prepared a summary of AWB's options with respect to the Pearl of Fujairah and the Andromeda.[416]
25.10 On 19 March 2003, Mr Whitwell emailed Mr Abdul-Rahman informing him that AWB was unable to order the vessel owners to enter Umm Qasr.[417] The same day the vessel owners advised AWB that unless AWB provided them with instructions, the Pearl of Fujairah would be moved 10 nautical miles from the military inspection point. AWB did not provide any instructions and the Pearl of Fujairah was moved to a holding point off the coast of Oman.[418]
25.11 On 19 March 2003, the points noted in Ms Lyons' summary were reproduced in the 'Iraq Situation Report'. The report also stated that United Nations inspectors had been removed from Iraq and that the Office of Iraq Programme (OIP) would be suspended. Under the heading 'Food Aid Possibilities', the report stated:
Continuing to work with Australian Govt, Ausaid and WFP on possible humanitarian assistance post war. Nothing concrete as yet although we have been given certain undertakings with regards to pre-positioning cargoes for humanitarian assistance. [419]
25.12 On 20 March 2003, Mr Hockey emailed Mr Whitwell with information received from the OIP:
The UN has advised officially the Oil-For Food program has been terminated.
However the Office for Iraq (OIP) Program office continues to operate.
Only 3 or 4 suppliers of differing commodities are reported to not have completed current contracts, including AWB Ltd.
AWB Ltd has been requested to provide a summary of its position at the time of termination of the Oil-for-Food program to allow decisions and actions to be taken to ensure our interests are fully protected by the OIP.[420]
25.13 An AWB 'Iraq Situation Report' dated 20 March 2003 recorded that an email had been sent to IGB:
… outlining current situation re Pearl of Fujairah. IGB reacted with understanding, thanks for our efforts and a request to do anything we can to solve the problem.[421]
The report also noted some 'Action Points for the Day', including the following:
…
25.14 The same day, Mr Long sent an email to Messrs Lindberg, Stott, Ingleby, Johnstone, Cooper and to Ms Scales and Ms Lyons, which read:
Please refer to the final point under Action Points for the Day:
'Explore situation with regard to inland transport paid to Alia Transport Jordan re Pearl of Fujairah-recover'
This issue should have been discussed.
Under the terms of the contract we prepay Alia Transport Jordan for discharge and inland transport to the Governates of Iraq.
We paid value date 14 March to Alia EURO 2.468 million for Pearl of Fujairah.
We are requesting these monies be returned and will include Alia's response in next update.
If in the worst case, they do not repay these monies, AWBI are holding a provision in the Pool Model for USD 5m for quality issues as part of the USD 25 million total provision. Actual payments due (NOT PAID) as part of this provision are USD 2.016m for the iron filing claim and USD 100k for sand compensation on Peter S, totalling USD 2.116m.
We would also include this amount as part of our total claim on UN/Govt's.[423]
Mr Long's proposal assumed that withholding monies due to IGB could legitimately exert pressure on Alia to repay the inland transportation fees paid on the Pearl of Fujairah. That assumption made sense only if Alia was a conduit for the funds to IGB.
25.15 On 20 March 2003, Mr Lindberg restructured the 'Iraqi Emergency Response' team as an ELG sub-committee comprising Messrs Lindberg, Stott, Johnstone, Long and Hockey and Ms Scales. [424]
25.16 On 21 March 2003, Mr Whitwell reported to IGB in relation to the Pearl of Fujairah:
As per your request and my last phone conversation with Miss Moona we have found a solution to discharge this vessel and will be arranging for the vessel to return to discharge the cargo for the Iraqi People. We are working through the details but will revert to you shortly with an arrival date … [425]
25.17 On 21 March 2003, the Australian Government issued a press release which stated:
The Government has today decided to provide 100,000 tonnes of Australian wheat to Iraq in the form of humanitarian food assistance.[426]
The 100,000 tonnes referred to was the two AWB shipments on board the Pearl of Fujairah and the Andromeda.
25.18 On 21 March 2003, Mr Whitwell sent a facsimile to Alia:
As you are aware, AWB made a payment to Alia for Transportation & General Trade of EUR 2,468,235.80 on 14 March 2003.
As per agreement with the IGB, this payment was made prior to vessel discharge for inland transportation services from the port of Umm Qasr.
These services were to be rendered in respect to the grain loaded aboard the MV Pearl of Fujairah, under contract A1441 with the Iraq Grain Board.
Unfortunately due to the outbreak of hostiles in Iraq AWB was unable to discharge due to the withdrawal of UN inspection agents from Umm Qasr. I understand from our telephone conversation of the 20th March 2003 that these monies are no longer in an account controlled by Alia for Transportation & General Trade and as such AWB has no option but to reserve our rights in this regard.
We would kindly ask you to investigate this very serious matter and organise to repay the amount to the following AWB account without delay.[427]
25.19 The 'Iraq Situation report' dated 22 March 2003 stated:
…
25.20 On 24 March 2003, Mr Whitwell received an email from Alia in relation to proposed transportation of the Pearl of Fujairah cargo from Tartous to Baghdad. It stated:
Regarding our telephone call concerning the inland transportation of the vessel Pearl of Fujaira from Tartous to Baghdad….
… The prices will be relatively high as a result of high risk. It would reach 34$/mt including the transportion and forwarding expenses and the CMR…
… As for the way of payment; we would like to ensure you that it will be discussed later.[429]
25.21 The 'Iraq Situation Report' dated 25 March 2003 noted the following developments:
…
25.22 Both the facsimile sent by AWB to Alia on 21 March 2003 acknowledging that the inland transport fees paid were 'no longer in an account controlled by Alia', and the 25 March 2003 'Iraq Situation Report' report alluding to Alia having sent a letter to 'concerned parties' in relation to the inland transport payment, indicate that AWB was aware that money paid to Alia was being passed on to a third party. The identity of the party to which the monies had been transferred by Alia was not mentioned. The monies would not have been transferred by Alia if the fee was for transportation of AWB's grain by Alia.
25.23 In May 2003, Messrs Whitwell and Edmonds-Wilson travelled to Jordan and Iran to discuss further business in those countries. Whilst in Jordan, they took the opportunity to meet representatives from Alia. [431]
Following their trip Mr Edmonds-Wilson prepared a trip report which included a report of their meeting with Alia. The report included:
Importantly, the matter of the EUR2.5m inland transport paid for the MV Pearl of Fujairah was brought up with both Othman and the Chairman. Both Othman and the Chairman said the matter had previously been tabled between Alia and Mr Yousif. Alia said that as soon as someone with authority to sign the appropriate documentation from the Iraqi side, the money would be returned to Alia and then to the company in question (this affected about 10 companies other than AWB).
Alia had the appropriate documentation showing the money had been remitted so we will now have to wait until the hierarchy in Iraq is up and running to chase. The Chairman had much faith and trust that the $$ owing would be returned in due course and said he would do everything possible to access the funds from the frozen account asap. Alia had recently sent a letter to Iraq (around 20/03) re funds that had been paid but services not provided and therefore needed to be returned. [432]
The report was approved by Mr Whitwell and forwarded to Messrs Lindberg, Geary, Ingleby, Stott, Fuller and Ms Scales.[433]
Ms Scales gave evidence that she did not recall reading the report or whether it was presented at an ELG meeting.[434]
25.24 Mr Geary acknowledged that, as a member of the ELG it was likely that he read this document[435], however he gave evidence that he could not recall reading these two paragraphs. [436] It is likely that Mr Geary did read these two paragraphs. Mr Geary was non-responsive when the proposition was put to him that any admission that he read the document would fix him with knowledge of what was happening with the money paid to Alia. This evasiveness adversely affects the credibility of Mr Geary's evidence.
25.25 Mr Lindberg could not recall reading the report. [437] He also denied that he necessarily would have read intelligence concerning Iraq in May 2003. [438] Mr Lindberg said that it was likely that the report was sent to his secretary for the purpose of an ELG meeting.[439] Iraq represented an extremely important market that was then in jeopardy as a result of the outbreak of hostilities and the board of AWB was extremely concerned about it.[440] Indeed one of options considered under the heading 'Action' for this part of the report was 'possibly AL to meet in Jordan.' [441]
Mr Lindberg accepted that the report clearly recorded an admission by Alia that the money it was receiving on account of inland trucking fees was being paid to the IGB [442]:
The Commissioner: What it makes clear is that Messrs Whitwell and Edmonds-Wilson knew, in May 2003, that the payment of trucking fees, in whatever amount, to Alia was simply a front and a method of conduit for that money to Iraq, because when the service of the trucking was not delivered, the money was to be returned by Iraq, not by Alia, and if, in truth, the moneys paid for trucking to Alia had been for trucking by Alia, and the service hadn't been provided, they would simply have had to ask Alia for the money back, not ask Iraq for the money back. That's what it says in black and white, Mr Lindberg, doesn't it?
A: It appears so.[443]
25.26 Mr Lindberg accepted that the ELG comprised the nine most senior managers in AWB[444], namely, himself, Dr Fuller, Mr Ingleby, Ms Gillingham, Mr Kennedy, Mr Geary, Ms Scales, Mr Stott and Ms Sharpe:
Q: That meant that if any one of those nine people, in truth, read this document, they would have known, in May 2003, that the payments of trucking fees to Alia were a conduit for payment of moneys to Iraq. If any one of the nine senior persons had read the document which was sent to them, it would have been impossible for AWB to maintain the position it has since maintained in relation to trucking fees - impossible to maintain it to the Australian Government; impossible to maintain it to the United Nations; and impossible to maintain it to this Commission.
A: Mmm. Well, I say my state of knowledge about this was that I didn't have that understanding.
Q: If any one-
A: -at that time.
Q: -of the nine senior members of this organisation had read it, they would have had to have said, when the position was taken by AWB that it had no knowledge that these trucking fees were a device to allow payments to the Iraqi authorities, that that position was a false position on the part of AWB?
A: Well, I don't know what they understood by that.
Q: It is there in black and white. It is not capable of misinterpretation, is it?
A: Well, I don't know what they understood by that.
Q: This document makes plain, as I am presently advised, that the position adopted by AWB publicly for the last two and a half years is simply not tenable.
A: Well, that's not what I understood and not what I believe to be the case.
Q: But if you had read that document it must be so, mustn't it?
A: Well, I don't - well, it depends what people understood by that.
Q: You have told me what you understood by it - twice now?
A: Well, with your assistance.
Q: But I just read the paragraph, Mr Lindberg.
A: I don't know what the - I don't know what that line 'and then to the company in question (this affected about 10 companies other than AWB' - what does that mean?
Q: What it plainly means is that AWB was not the only company paying moneys through to the Iraq regime through Alia; there were at least 10 others.
A: Well, that's what it says. [445]
25.27 Mr Whitwell agreed that it was plain from these discussions that monies paid to Alia on account of inland transport were transferred by Alia to the Iraqis.[446] Moreover, as discussed later in this chapter, AWB eventually entered into an agreement with Alia to provide trucking services which also provided for recovery of the inland transport fees paid in respect of the Pearl of Fujairah. That agreement provided that AWB would gradually deduct the fees from monies paid to Alia for trucking services, unless it recouped them from 'the appropriate Iraqi authority'. Again, this clearly demonstrates that AWB knew that the inland transport fees paid to Alia prior to March 2003 were passed onto the Iraqis.
25.28 A reader of the trip report would have appreciated that the inland transport fees had been 'remitted' to IGB. There is no evidence that the ELG collectively or any of its members responded to this aspect of the report, notwithstanding that it undoubtedly suggested a breach of sanctions and that Alia was, in substance, a front company for IGB.
25.29 On 24 March 2003, AWB sent an offer to AusAid for the cargo on board the Pearl of Fujairah and the Andromeda.
Between 24 and 26 March 2003, the price and terms of the contract were further negotiated between AusAid and AWB.
25.30 On 27 March 2003, AWB concluded contract A1827 with AusAid for the sale to AusAid of 100,860 metric tonnes of wheat (being the wheat on the Pearl of Fujairah and the Andromeda). [447]
25.31 On 5 April 2003, Mr March (from AusAid) sent an email to Mr Long advising that the government had agreed to a request from the United Nations to assign the shipments of wheat to the World Food Programme (WFP) who were at that time administering the Oil-for-Food Programme. [448] Mr March asked that AWB return the A$35 million paid under the contract as soon as possible.
25.32 On 6 April 2003, Mr Mitra of AusAid sent an email to Mr Whitwell asking that AWB:
… contact OIP and WFP urgently to make necessary arrangements to reactivate your contract with OIP under the OFF program and finalise any adjustments to that contract as appropriate.
Insofar as our current contract with AWB applies, we can confirm that the Pearl of Fujairah should discharge its cargo in Kuwait to the World Food Program …[449]
25.33 On 7 April 2003, Mr March emailed Mr Long attaching confirmation from the OIP that arrangements were in hand for the two shipments to be managed under the Oil-for-Food Programme. [450]
25.34 On 20 March 2003, shipments under contract A1441 had not been completed. This was apart from the two cargoes on the Pearl of Fujairah and Andromeda.
25.35 On 8 April 2003, AWB's 'Iraq Situation Report' summarised the efforts to renegotiate the three contracts with the OIP. It noted:
Extensive and positive discussions with WFP who have been empowered by OIP to discuss contractual arrangements with us and provide recommendations to the OIP for Approval. All issues were covered with them and agreement obtained to consider the 5 afloat/loading vessels under this resolution… and make amendments to A1441 letter of credit accordingly. All other issues of concern were addressed and we agreed AWB would provide an amended price for contract A1441 for verbal discussion… [451]
In relation to contract A1680, the report noted:
… Further discussions relating to our amending our other contracts (A1670 & A1680) going forward were positive but agreement was reached to look at this after amendments to A1441 had received sign off by the OIP.[452]
25.36 By 9 April 2003, the Pearl of Fujairah had commenced unloading at Kuwait.[453]
On 9 April 2003, Ms Lacy of the WFP emailed Mr Whitwell enclosing two Amendments, one relating to contract A1441 and, the other relating to contract A1680. [454]
The price per tonne for contract A1441 was reduced by €41.42 per tonne and the terms changed to CIF free out to Red Sea or Persian Gulf port(s). [455] For A1680, the price was reduced by €33.33 per tonne CIF free out to Red Sea or Persian Gulf port(s).[456]
These amendments were signed by AWB and faxed back to the WFP on the same day. [457]
On 10 April 2003, the OIP faxed the WFP, confirming receipt and processing of the amendments in connection with the two contracts and advising that the amendments had been forwarded to the United Nations Treasury.[458]
25.37 The amendments to contract A1441 and A1680 were significant for a number of reasons:
25.38 On 10 April 2003, Mr March (AusAid) emailed Mr Whitwell and advised that it had received from the WFP the concluded contractual arrangements with AWB.[459] In view of this fact, Mr March again requested the return of the monies paid under the contract.
Mr Whitwell replied by email that day, saying that AWB was still awaiting advice from the relevant UN office with regards to amendments.[460] He also indicated that until AWB was in receipt of the official notification and was happy that all issues pertaining to AWB were covered to their satisfaction, it would not be in a position to confirm anything further or to progress other issues.
25.39 On 11 April 2003, Mr Whitwell sent a facsimile to Mr Afeworki at the OIP setting out the changes required by AWB to contracts A1441 and A1680 and associated letters of credit. The amendments requested in relation to contract A1441:
Ports:
Umm Qasr or Persian Gulf Port(s) or Red Sea Port(s)
UN Approval forms (to be amended) to include Persian Gulf/Red Sea
Eligible for payment-Resolution 661 Committee Letter
Request to ship goods letter (price) (value)
DFAT permission to export (ex Australia) AWB will ask DFAT to amend wording
Umm Qasr or Persian Gulf Port(s) or Red Sea Port(s)
Letter of credit #P736679:
Whenever it appears CIF Umm Qasr include option of CIF Persian Gulf Port(s) or CIF Red Sea Port(s).
Standardize confirmation ……… of arrival of the exported goods in Iraq (wording to be amended to cover point of entry outside of Iraq)
Pricing: Euro Umm Qasr amend to include
Euro Persian Gulf port(s) or Red Sea port(s) [461] [original emphasis]
This was a reduction of €41.42 per tonne.
25.40 On 11 April 2003, Mr Whitwell sent an email to Mr March in the following terms:
Following my telephone conversation of this morning wish to confirm that we are now in receipt of the necessary UN OIP approval. In view of this AWB has pleasure in confirming that in line with the Commonwealths request AWB Limited now considers the above mentioned contract cancelled in all respects and will return your payment of AUSD 35 million as soon as AWB treasury procedures allow.[462]
25.41 The balance of the cargo purchased under contract A1441 was shipped in four further shipments. These were shipments to the WFP. In each instance the cargo was discharged at a port other than Umm Qasr. In each instance, the wheat was sold CIF free out at the alternate port. For each shipment, no inland transportation fee[463] was paid by AWB.
25.42 Following the cancellation of AWB's contract with AusAid, the cargo that had been shipped on board the Pearl of Fujairah and the Andromeda (and originally allocated to contract A1441) was transferred by AWB to contract A1680.
25.43 On 14 April 2003, AWB returned $35 million to AusAid.[464]
25.44 On 17 April 2003, AWB issued an invoice to IGB for the Pearl of Fujairah shipment. [465] The price was the same price 'CIF free out Persian Gulf ports' as the renegotiated price for contract A1680.[466] A similar invoice was issued on 22 April 2003 in respect of the shipment of the Andromeda.[467] The price was the same as for the Pearl of Fujairah.
At the same time, new bills of lading were issued for the Pearl of Fujairah and Andromeda shipments, backdated to 21 February 2003 and 2 March 2003 respectively, being the original bills of lading dates. The bills named WFP as the consignee and Kuwait and Aqaba as the ports of discharge. [468]
25.45 AWB claimed to have incurred expenses relating to the Pearl of Fujairah including deviation, demurrage, port charges, and agency charges associated with the discharge of the cargo. [469]
On 20 May 2003, Mr Hockey sent an email to Messrs Whitwell and Fahy. [470] He reported the following:
An issue which came up today with WFP and OIP is the compo claim for pearl and Andromeda.
The matter needs to be negotiated directly with Irene [Ms Lacy of WFP], and the contractual amendments made, then BNP will pay against the LC. Un Treasury have no problems-so the one issue for us is the negotiations with WFP.
The WFP guy I spoke to in NY… started asking some questions about the claim and I immediately played dumb. He said it looked like there was some double dipping as a number of the costs should have been covered with the original renegotiated contracts.
So it looks like they are well and truly on the case.[471]
25.46 The WFP ultimately found these claims to be 'justified' and 'reasonable' and agreed to reimburse AWB these expenses by increasing the price per tonne that would be paid for these two shipments. This amendment to contract A1680 was concluded 9 July 2003. [472]
25.47 The effect of this amendment was that for the Pearl of Fujairah AWB would be paid a revised price of €12.13 per tonne and for the Andromeda a revised price of €19.18 per tonne greater than the otherwise revised price of 9 April 2003. This price continued to apply to the balance of the shipments to be made under that contract A1680.
25.48 On 28 May 2003, Mr Whitwell sent an email to Mr Long and others, updating them on his most recent Middle East visit. Mr Whitwell indicated that AWB should try to complete contract A1680 before the Oil-for-Food Programme finished:
… with respect to the transfer from OFF back to the interim administration obviously we just want to the remaining contracts to revert back to IGB control and be executed in the normal way with the existing LCs (for the remainder of 1680) and get them to fund LC for 1670. We would have to analyse whether we go back to CIF all governorates Iraq for the remainder of the contract or whether it is more advisable to keep CIF and renegotiate other accordingly-I guess we would have to have discussion with Alia at appropriate time.[473]
25.49 In May 2003, Mr Long was appointed by the Australian Government to assist with the rebuilding of Iraq. He spent approximately five months assisting within the Coalition Provisional Authority (CPA) Ministry of Trade.[474] His codename whilst in Iraq became known throughout AWB as 'Proton'. [475]
25.50 Mr Long was sent to Iraq with the following objectives:
25.51 Mr Long's immediate superior in the Ministry of Trade was an ex-US Ambassador who was aware of Mr Long's former position at AWB.[477]
Mr Long's initial work in Iraq was focussed on prioritising non-food contracts in conjunction with WFP and Iraq officials; however, a short time after his arrival he was requested to consider food contracts.[478]
25.52 On 29 May 2003, Mr Hockey, sent an email to DFAT stating the following:
(ii) the need for AWB to influence the WFP forward prioritisation program to protect the remainder of the funded 300,000 tonne contract
WFP are making the recommendations for forward prioritisation of contracts, and it is essential AWB contracts are placed ahead of previously abandoned Russian and Indian contracts from many years ago. (Once again, AWB put stocks aside while the others walked away from contracts and delivered elsewhere when the market shifted). WFP decisions are being made in Iraq. WFP in Larnaca and Rome have advised AWB to deal directly with Torben Due in Baghdad.[479] [emphasis in original]
25.53 In his evidence, Mr Long stated:
The Iraqi people openly acknowledged that they preferred Australian wheat.[480]
It was on this basis and in conjunction with the Iraqi Ministry of Trade Officials, and with support from his US counterparts, that Mr Long prioritised AWB contracts A1670 and A1680, and they were subsequently handed to the WFP for renegotiation with AWB.[481]
25.54 On 2 September 2003, United Nations approval for contract A1670 was issued, valid to 1 September 2004. [482]
25.55 On 3 September 2003, Mr Stephens (from the Australian mission to the United Nations) forwarded to Ms Armstrong (of the Iraqi Task Force) a copy of the approval letter, together with OIP Expert Report Concerning Request to Ship Goods to Iraq in accordance with Security Council Resolutions 986 (1995) & 1409 (2002). [483] A copy of that facsimile was also sent to Mr Hockey.
25.56 On 11 September 2003, WFP sent a facsimile to Mr Whitwell which read:
Under the U.N. Security Council Resolution 1483, the CPA (Coalition Provisional Authority in Iraq) has prioritized the above mentioned contract for re-negotiation with the U.N. World Food Programme.
In this regards, the CPA has provided the following renegotiation terms for your consideration:
A representative from the U.N. World Food Programme will be contacting you shortly in this regard. [484]
25.57 The reduction in 10 per cent was a blanket policy decision from Washington applying to all of the Oil-for-Food Programme contracts. This decision was the result of an investigation that produced the 'Report on the Pricing Evaluation of Contracts Awarded Under the Iraq Oil for Food Program'.[485] This report was the response to the US Wheat Associate's complaints about AWB's Oil-for-Food Programme contracts. It was the CPA's belief that the 10 per cent inflation was in breach of United Nations Sanctions and that the removal of the 10 per cent was to conform with sanctions. [486]
25.58 On 16 September 2003, Mr Whitwell sent a fax to the WFP in response to their offer stating (in part):
3. Reduction by 10 percent of contract value.
Whilst we would stress that this is extremely abnormal to consider such an arbitrary reduction in contract price we assume that this has been made as a request by the Iraqi Grain Board in consultation with the CPA and that this reduction is associated in some way with a re-evaluation of inland transport and After Sales costs. As such we agree to the reduction as long as our associated extra costs resulting from the delay in executing this contract are taken into account. Please see section 6 AWB associated costs.[487]
It is apparent from the passage quoted that Mr Whitwell was aware of the 'After sales costs'. He knew by then that contract A1680 had been inflated by 10 per cent by such a factor.
25.59 Before preparing this fax, Mr Whitwell consulted with Mr Johnson, the Pool Manager and Mr Long who was in Baghdad at the time. His evidence was:
I had had a conversation with Michael [Long] prior to sending this email, where he had said, 'Look, the CPA are taking a firm line. They have instructed WFP that 10 per cent should come off every contract.' He said, 'You have got to make a commercial judgment with David Johnson as to whether we want to do that-whether it makes sense from a pool participant's point of view to do so.'
I had had a subsequent conversation with WFP-I can't remember whether it was Henrik or Didier, where they just basically said, 'Look, this is just what we have got to do. We have got absolutely no room to negotiate on this. If you want your contracts-the balance of your contracts, 1670 and 1680, executed, you will agree to this.' And I think they sent me a letter laying out those conditions that were necessary for us to progress the contracts.
So I sat down with David and said, 'Look, this is what they are saying', and we ran through the commercial numbers in a commercial way. I still hadn't sorted out what my inland transport costs were, but I had, over the previous couple of months, taken some quotes from people. I still didn't know what my port costs were. I didn't know whether I could get stuff insured, but we felt that the price, even with a 10 per cent reduction, was one that was still comparable with the best price that we could get on the international market at that point in time, because the market in December had been at a very hight point, due to a number of reasons, particularly around supply and demand. There was a shortage of wheat in the world. I think 15 million tonnes had disappeared off the balance sheet in December 2002 when we made the contract.
By September 2003, the US had rebounded with a bigger crop. Canada had rebounded, and we were starting to come into a better-you know, the 2003/2004 harvest for Australia was looking better than the drought year, the previous. So the world market price was moving down, and if we had sold that 800,000 tonnes that we were carrying in our stock on or around this time on the international market, we would not have recouped if we had taken the 10 per cent off here and taken all of our costs off. So it was just a commercial decision that said, 'Okay, we've got the option to execute this contract, and it is better for us to take the 10 per cent and get on with it than it is to say, 'No, we're not going to take the 10 per cent and we will discuss it with the new Iraqi government''.[488]
25.60 Mr Long stated that it was his belief that the additional 10 per cent in the contracts was a genuine fee for transport. [489] I do not accept that evidence.
Mr Long stated that he did not have any involvement in the renegotiation on the contracts A1670 and A1680:
…except to advise AWB that there was a unilateral imposition of 10% reduction on all contracts. I left it up to AWB to decide as to whether they wanted to accept or not. AWB decided that due to the market situation, it was still in the growers interests to execute these contracts.[490]
25.61 On 17 September 2003, the WFP responded to Mr Whitwell's facsimile attaching the terms of the contract amendment as agreed between AWB and WFP.[491] The facsimile advised that the WFP had been requested by the CPA to 'deduct the after sales service fee of 10 percent on this contract'. The WFP also reiterated its revised price. It wrote:
… The terms for the renegotiation have been provided by the CPA and operational issues concerning the actual deliveries will be [handled] by MoT. You might want to discuss some of the issues raised with these parties.[492]
25.62 On 18 September 2003, Ms Lyons provided an advice to Mr Whitwell (apparently in response to his inquiry) about whether the WFP was entitled, under the provisions of the relevant UN resolutions, to arbitrarily and unilaterally reduce the price by 10 per cent. She noted:
… Under UN Resolution 1472 (2003) (extended by para 16 of Resolution 1483 (2003)), the WFP is authorised to review all funded and non-funded contracts for the purposes of determining priority between them. In this case, the WFP states that it has undertaken such a review and is therefore approving the fulfilment of the remaining tonnage under the AWBI contract.
The WFP is also entitled (under para 4(d) of Resolution 1472 (2003)) to negotiate and agree on necessary adjustments to the terms of the reviewed contracts. These words do not entitle the WFP to arbitrarily or unilaterally adjust the contract price. [493] [emphasis in original]
Ms Lyons also noted that while there may be sound arguments against reduction on a strictly legal basis, from a practical point of view, the likelihood of negotiating a better price on the contract was remote.
25.63 Mr Whitwell drafted a memorandum dated 22 September 2003, entitled: 'Iraq Update.'[494] Under the heading 'Operational Update', he noted:
… Discussions have begun with WFP on the balance of both contracts 840,000 mt. We have received a request to reduce contract value by 10 pct to -Euro CIF All governorates Iraq. Working through Operational issues with them and discussing adjusted price. [495]
25.64 On 24 September 2003, following a telephone conversation the previous day, Mr Whitwell sent a facsimile to the WFP offering a revised price per tonne CIF Free on Trucks to silo all governorates Iraq shipped to the port of Umm Qasr or Aqaba sellers option, in respect of the balance of contract A1680.[496]
AWB also asked if it was possible to build in an option for sellers to deliver on a CIF free out Aqaba or Umm Qasr basis and if so, what would be the revised unit price and relevant authentication procedure.[497]
25.65 On 25 September 2003, the WFP sent a fax to AWB which commenced:
Please find attached a copy of the Contract Amendment, as agreed between your company and the United Nations World Food Programme.[498]
WFP advised that the contract validity for contract A1680 was pending approval from the OIP, and that issues relating to the letter of credit should be directed to BNP.
The same day, a facsimile was sent by Mr Whitwell to the WFP, enclosing 'signed format for amendment for onward presentation to OIP'.[499] The amendment to the contract provided for a revised price CIF free on trucks to silo all governorates Iraq shipped to the Port of Umm Qasr. [500] The effect of this amendment was to make contract A1680 again a CIF free in truck contract. The revised price departed from the earlier amendment which was a CIF free out price.
25.66 This revised price was a decrease of €25.49 per tonne on the price under the original contract. It represented a reduction in the 10 per cent after-sales-service component of the price. AWB was still, in effect, receiving as part of the proceeds of sale €25.84 per tonne of the original inland transportation fee that had also been included as part of the price under the original contract, although AWB now had to make arrangements for and pay for the discharge inland carriage of these cargoes. [501]
25.67 On 26 September 2003, Mr Lister sent a fax to the United Nations Treasury, advising of amendments required to the letter of credit. With respect to pricing, Mr Lister said:
I understand that the price will also need to be amended to EURO 254.88 per metric ton (basis Umm Qasr discharge) and EURO 265.88 per metric ton (basis Aqaba discharge) which kindly arrange accordingly. [502]
25.68 On 30 September 2003, Mr Whitwell sent an email to Mr Long and others advising that United Nations administration had cleared both contracts A1670 and A1680 at the amended contract price. [503] He also said that a letter of credit would be opened for A1670 and that amendments would be sought to the existing letter of credit for A1680.
25.69 An AWB spreadsheet, dated 1 October 2003, set out the likely outcomes for contracts A1670 and A1680 under the renegotiated terms.[504] It recorded the following:
25.70 Under the renegotiated contracts A1670 and A1680 AWB was responsible for the discharge and transportation of its grain from the discharge port to all governorates in Iraq. It commenced making inquiries with various companies about stevedoring and trucking services.
On 21 August 2003, Alia emailed Mr Whitwell, enclosing a sample contract for trucking services which Alia had entered into with a company in Vietnam. [505] The following day, Mr Whitwell forwarded the contract to Mr Fahy and Mr Edmonds-Wilson. [506]
25.71 On 8 September 2003, Mr Whitwell emailed Mr Maaytah of Austrade advising that he would be in Jordan in later September. He asked:
In the meantime need a favour. Need to track down and contact somebody at Kawasmi Trucking Co in Jordan re looking at 2 suppliers of inland transport for Iraq contracts (alia being the other) Could you perhaps help me track down name and numbers of somebody to speak to there.
Rgds
Chris
ps if you have any other recommendations re trucking co used by WFP in last round would be good. Plse keep this private and confidential ie plse do not discuss with wfp[507]
25.72 On 26 September 2003, Mr Maaytah replied to Mr Whitwell's email saying he would arrange a meeting for Mr Whitwell with Mr Kawasmi during Mr Whitwell's visit to Amman. He also gave a brief summary of the Kawasmi trucking company including details about its fleet of trucks, capacity and transport prices.[508]
The following day, Mr Whitwell emailed Mr Kawasmi asking him to make an offer for trucking services. He said:
We have just had our remaining contracts prioritised and we are required to manage the inland transport of these contracts to all governorates. We understand you have handled these contracts in the past for WFP and I would like to discuss urgently with you providing a similar service to AWB.[509]
25.73 On 9 October 2003, Mr Whitwell emailed Mr Al Absi of Alia attaching a draft 'Inland Transport Agreement'. He said: '… looking forward to meeting you in Amman soon'.[510] Mr Whitwell then sent an email to Mr Wall saying:
I have sent re-amended agreement to Alia and Kawasmik could you send the same to Barwil with the relevant ccs. [511]
On 9 October 2003, Mr Wall emailed Mr Fadlu-Deen and others of Barwil Shipping Agencies attaching the draft agreement and inviting an offer as soon as possible. [512]
25.74 On 15 October 2003, Mr Al Absi of Alia, emailed Mr Whitwell attaching a draft contract with AWB. [513] The following day, Mr Whitwell forwarded the draft to Mr Fahy, copied to Messrs Long, Johnson, Johnstone and others. He noted:
how does this stack up price wise against the others ? otherwise he has accepted all the major points I need to discuss payment with him but want to be able to go back on figures as well. Am not too concerned about giving discharge rates. Might try and incentivise out performance there?[514]
Later that day, Mr Fahy replied:
Alia are the most competitive on the transport (around 60% of the price of barwil)
I note that Kawasmi only offered for Aqaba only-doesn't matter he was too expensive anyway.
Barwil have not listed all costs for UQ because don't have it in hand
Only issue I have with othman's proposal is his stevedoring charges, believe he has made a mistake by showing charge of $US14/mt. Unless I hear from you tonight I will send him an email asking for clarification on this point. Once received I can make a full recommendation on price alone (you know the quality of performance of alia-I can't speak on behalf of barwil or kawasmi).[515]
25.75 On 20 October 2003, Mr Whitwell emailed Mr Long attaching the latest version of the inland services agreement with Alia. He asked Mr Long to provide his views on the agreement or alternatively approve it.[516]
25.76 On 21 October 2003, an 'Agency and Transport Services Agreement' was signed by Mr Whitwell, on behalf of AWB Services Limited, and Mr Al Absi, on behalf of Alia For Transportation & General Trade Co.[517] The agreement imposed obligations on Alia to provide services with care, skill and diligence and required Alia to provide a warranty that it had the necessary skills and training to perform the services the subject of the contract. The agreement required Alia to provide an assurance that its vehicles would be in good working order and suitable for the transport of grain. In fact, the agreement included terms usually found in a standard agreement that a company would normally enter into when asking another company to provide it with a product or service.[518]
25.77 The agreement also included one unusual arrangement whereby AWB would gradually deduct monies owed to it (namely, the inland transportation fees paid by AWB in respect of the Pearl of Fujairah shipment) until the full amount was recouped. The agreement provided, in Clause 1 of Schedule 2, that:
The balance of due transport charges less USD 1 pmt deduction as outlined in schedule 2 (clause 4) will be paid on receipt of the Contractor's invoice…[519]
AWB qualified this by agreeing to remit those deducted monies if they managed to recoup the fees from Iraq. It agreed, in Clause 4:
In respect of transport charges AWBS to deduct USD 1 per metric tonne representing a part repayment of a previous inland transport payment which was not executed. In the event that AWBS do receive acceptable repayment from the appropriate Iraqi authority then AWBS will the remit the total value repaid by the contractor under this repayment scheme to the contractor.[520]
25.78 Following the incursion into Iraq in March 2003, AWB was held by the Coalition Provisional Authority (CPA) and World Food Programme to its obligation to arrange for the discharge and delivery of wheat within Iraq, in accordance with the terms of its then unfulfilled contracts with IGB.
It thus became necessary for AWB to consider the insurance of its wheat during the transportation within Iraq. As Mr Whitwell wrote in an email dated 6 October 2003 in preparation for a meeting within AWB in relation to the continuation of AWB's shipments under contracts A1670 and A1680:
5. Insurance
We are covered for the Ocean freight portion but we need to look at the inland transport sector and minimising the risks through our contracts with inland transport suppliers (we are assuming insurance will be difficult to get although Alia have offered to self insure). [521]
On 7 October 2003, Ms Girando circulated an email headed 'Iraq Issues-Minutes & Action Items' which recorded in relation to insurance:
Marine cargo-fully covered
Inland freight-Annette needs info [522]
As an alternative to it taking out insurance in relation to the inland transportation leg, AWB also investigated the possibility of Alia providing such insurance or arranging for the issue of certificates of insurance declaring that the wheat was:
insured whilst in transit in Iraqi governates. [523]
25.79 Under the terms of the Agency and Transport Services Agreement that AWB eventually concluded with Alia in October 2003, Alia agreed to arrange for insurance of the shipments during their transportation in Iraq, including on behalf of AWB. Clause 11 of that agreement provided:
11. Insurance
11.1 The Contractor [Alia] must effect and maintain for the entire Term the Insurance Policies in the joint names of the Contractor and AWBS and for their respective rights and interests.
11.2 The Insurance Policies must be effected with an insurer approved by AWBS and must be on terms satisfactory to AWBS. Without limitation, the Insurance Policies must include the Required Insurance Conditions.
11.3 In the event that the Contractor sub-contracts any of its obligation under this agreement, it must ensure that each of its sub-contractors effects insurance policies of the same type as the Insurance Polices containing the Required Insurance Conditions and in the joint names of the sub-contractor and AWBS for their respective rights and interests and that such insurance policies are maintained for the entire Term.
11.4 The Contractor must from time to time upon request by AWBS provide such documentary evidence as AWBS requires (including certificates of currency) to evidence the Contractor's compliance with the requirements of this clause.[524]
25.80 Clause 16 of this agreement recorded the acknowledgement by Alia that under the terms of this agreement, it may be liable to AWB and AWBI in relation to loss or damage that they sustain as a consequence of loss or damage to the wheat. [525]
Similar provisions were also included in AWB's subsequent Agency and Transport Services Agreement dated 8 July 2004. [526]
25.81 In the meantime, AWB had obtained confirmation of cover for the inland transit of the wheat from its marine insurers in November 2003. [527] This insurance was to be placed on a vessel by vessel basis, rather than as a blanket policy (as with AWB's marine cover). An additional premium was payable. The terms differed from those of AWB's marine open cover.
25.82 In December 2003, in relation to a shipment that was being discharged in Aqaba, Jordan, Alia proposed that the wheat be discharged into silos and then into trucks as well as directly into trucks. This was in an attempt to speed up the discharge of wheat from AWB's vessels and thereby mitigate potential demurrage. [528] But before a decision could be made inquiries had to be made including of AWB's insurers to ascertain whether the cover provided for cargo after it had passed the ship's rail covered the wheat when stored in the silo. [529] This in turn required further details to be obtained about the proposed storage of the wheat. [530]
25.83 Included amongst the documents produced by AWB to the Inquiry was a certificate of insurance issued by the General Arabia Insurance Company Limited in favour of Alia dated 15 July 2004 in relation to an AWB shipment, providing cover for the inland transit to all Iraqi governorates and on terms that included 'All Risks 'Land Transit' Clause'. [531] This was provided to Mr Whitwell on 19 October 2004. [532]
25.84 The following observations may be made in relation to the foregoing:
25.85 On 30 December 2003, AWB and the CPA reached agreement to a further amendment to contract A1670. [533] Pursuant to this amendment, the contract value was increased. The increase [534]was 'to support the accelerated delivery of approximately 220,000 Metric tons (hereinafter 'MT') (+/- 5%) of wheat …'[535] The increase was said to cover:
… the costs and charges for deviation, diversion, detention, demurrage, stranding and other costs associated with delivery of the goods…[536]
25.86 On 18 April 2004, the Letter of Credit that had been earlier issued in respect of contract A1670 was amended by the agreement of AWB and CPA to reflect the changes made to contract A1670 in December 2003. [537]
[400] Ex 1376, AWB.0331.0270.
[401] See Chapter 23.
[402] Ex 1444 at AWB.0019.0119_R.
[403] Ex 1444 at AWB.0060.0371_R.
[404] Ex 542, DFT.0006.0098.
[405] Ex 542, DFT.0006.0116.
[406] Ex 1444, AWB.0021.0273_R.
[407] Ex 1444, AWB.0019.0052_R.
[408] Ex 1444, AWB.0019.0109_R.
[409] Ex 1376, AWB.5097.0200_R-0201_R.
[410] Ex 1377, AWB.0060.0474_R.
[411] Ex 1444, AWB.0079.0094_R; This is confirmed by the Ferrier Hodgson spreadsheet (provided by AWB) at Ex 368C, AWB.0130.0029.
[412] Ex 1376, AWB.0142.0015_R.
[413] Ex 1376, CES.0001.0081_R.
[414] Ex 1376, AWB.0142.0016_R.
[415] Ex 1376, AWB.0236.0127_R.
[416] Ex 1376, AWB.5022.0175_R; Ex 1574, AWB.5022.0176-0184.
[417] Ex 1376, AWB.0142.0005_R.
[418] Ex 1377, AWB.0253.0075._R.
[419] Ex 1376, AWB.5017.0246_R at 0248_R.
[420] Ex 1223, AWB.0439.0211.
[421] Ex 1377, AWB.0253.0085_R.
[422] Ex 1377, AWB.0253.0085_R.
[423] Ex 79, WST.0004.0036.
[424] Ex 1376, ELG.0002.0208.
[425] Ex 1377, AWB.0236.0122_R.
[426] Ex 1376, AWB.5022.0230.
[427] Ex 1444, AWB.0296.0018_R.
[428] Ex 1376, ELG.0002.0213_R.
[429] Ex 1377, AWB.0296.0020_001_R-0021_R.
[430] Ex 1376, ELG.0002.0220_R.
[431] Ex 300, WST.0001.0066 at 0071, para. 25.
[432] Ex 1387, EXH.0001.0070_R at 0073_R; Ex 1512, AWB.0202.0052_R at 0055_R.
[433] Ex 1377, AWB.6047.0017.
[434] T 2947.36-42.
[435] T 1510.38-40.
[436] T 1511.35.
[437] T 985.22; T 986.14.
[438] T 987.16.
[439] T 986.2.
[440] T 986.41-T 987.6.
[441] Ex 1387, EXH.0001.0070_R at 0074_R.
[442] T 984.44.
[443] T 985.5-16.
[444] T 988.8-9.
[445] T988.15-T 989.19.
[446] T 2744.32-33.
[447] Ex 1376, AWB.5059.0053_R; Ex 1376, AWB.0021.0314_R.
[448] Ex 1376, AWB.5023.0065_R.
[449] Ex 1376, AWB.5023.0070_R.
[450] Ex 1376, AWB.0245.0366_R.
[451] Ex 1223, AWB.0439.0217.
[452] Ex 1223, AWB.0439.0217.
[453] Ex 1376, AWB.5018.0053_R.
[454] Ex 1376, AWB.0153.0258.
[455] Ex 1376, AWB.0152.0155_R at 0156_R.
[456] Ex 1376, AWB.0248.0208_R at 0209_R.
[457] Ex 1376, AWB.0153.0229.
[458] Ex 1376, AWB.0152.0154.
[459] Ex 1376, AWB.5023.0203_R.
[460] Ex 1377, AWB.0401.0403_R.
[461] Ex 1444, AWB.0060.0428_R.
[462] Ex 1223, AWB.0439.0165.
[463] Or 10 per cent after-sales-service fee.
[464] Ex 1376, AWB.0183.0040.
[465] Ex 1376, AWB.0021.0287_R.
[466] Ex 1377, AWB.0248.0069_R.
[467] Ex 1376, AWB.0021.0002_R.
[468] Ex 1392, AWB.0021.0249_R; Ex 1444, AWB.00199.0070_R.
[469] Ex 1376, AWB.0021.0226_R, AWB.0021.0235_R, AWB.0021.0237_R, AWB.0021.0243_R, AWB.0021.0244_R, AWB.0021.0227_R and AWB.0021.0228_R.
[470] Ex 1376, AWB.5014.0093_R.
[471] Ex 1376, AWB.5014.0093_R.
[472] Ex 1376, AWB.0248.0329_R.
[473] Ex 1376, AWB.5012.0029.
[474] Ex 76, WST.0004.0063 at 0092, para. 97.
[475] T 1848.17-21.
[476] Ex 1376, AWB.0252.0068.
[477] Ex 76, WST.0004.0063 at 0092, para. 97.
[478] Ex 76, WST.0004.0063 at 0092, para. 97.
[479] Ex 887, DFT.0013.0532.
[480] Ex 76, WST.0004.0063 at 0092, para. 97.
[481] Ex 76, WST.0004.0063 at 0092, para. 97.
[482] Ex 729, AWB.0152.0049.
[483] Ex 729, AWB.0152.0048-0051.
[484] Ex 332, AWB.0060.0320.
[485] Ex 730, AWB.0314.0002-0202.
[486] T 5873.12-33.
[487] Ex 321, AWB.0060.0317_R at 0318_R.
[488] T 2779.36-T 2780.36.
[489] T 1798.22-32.
[490] Ex 76, WST.0004.0063 at 0092, para. 97.
[491] Ex 1376, AWB.0060.0098_R-0099_R.
[492] Ex 1376, AWB.0060.0098_R.
[493] Ex 324, AWB.0154.0144.
[494] Ex 1376, AWB.0202.0113_R.
[495] Ex 1376, AWB.0202.0113_R.
[496] Ex 1376, AWB.0060.0092_R at 0093_R.
[497] Ex 1376, AWB.0060.0092_R at 0093_R.
[498] Ex 1376, AWB.0060.0088_R.
[499] Ex 1376, AWB.0060.0079_R.
[500] Ex 1377, AWB.0060.0080 at 0081.
[501] Unlike the position under the Oil-for-Food Programme contracts prior 15 March 2003.
[502] Ex 1376, AWB.0060.0085.
[503] Ex 1223, AWB.0439.0034.
[504] Ex 1223, AWB.0439.0023.
[505] Ex 1376, AWB.6009.0208-0213.
[506] Ex 1376, AWB.6005.0284-0287.
[507] Ex 1376, AWB.6006.0004.
[508] Ex 1376, AWB.6010.0093-0094.
[509] Ex 1377, AWB.6023.0120_R.
[510] Ex 1376, AWB.6018.0332; Agreement at Ex 1376, AWB.6023.0206-0220.
[511] Ex 1376, AWB.6018.0370.
[512] Ex 954, AWB.6023.0205; Ex 1376, AWB.6023.0206-0220.
[513] Ex 954, AWB.6014.0186; Ex 1575, AWB.6014.0188-0202.
[514] Ex 954, AWB.6061.0385.
[515] Ex 954, AWB.6014.0169.
[516] Ex 954, AWB.6019.0065; Agreement at Ex 1575, AWB.6014.0188-0202.
[517] Ex 954, AWB.0211.0001-0013.
[518] Ex 954, AWB.0211.0001-0013.
[519] Ex 954, AWB.0211.0001 at 0009.
[520] Ex 954, AWB.0211.0001 at 0010.
[521] Ex 1377, AWB.0258.0031_R at 0032_R.
[522] Ex 1377, AWB.6000.0131_R.
[523] Ex 1377, AWB.6014.0218_R at 0219_R.
[524] Ex 954, AWB.0211.0001 at 0005.
[525] Ex 954, AWB.0211.0001 at 0006.
[526] Ex 954, AWB.0258.0368 at 0372, 0374.
[527] Ex 1377, AWB.0245.0297_R.
[528] Ex 1377, AWB.6010.0388_R.
[529] Ex 1377, AWB.6010.0388_R.
[530] Ex 1377, AWB.0245.0295_R (Request), AWB.0245.0293_R (Response).
[531] Ex 82, AWB.0213.0058.
[532] Ex 82, AWB.0213.0049.
[533] Ex 1223, AWB.0439.0080.
[534] Which was approximately €3.9 million over the balance of the contract.
[535] Ex 1223, AWB.0439.0080.
[536] Ex 1223, AWB.0439.0080.
[537] Ex 1376, HDD.0003.0042.
