K&L Chemicals is a U.S.-based manufacturer of agricultural chemicals. K&L recently sold two thousand gallons of its most toxic pesticide to Sahara Traders, a company headquartered in the North African desert nation of Chad. Sahara Traders refused to

Question

disclose the use that it intended to make of the product and paid cash upon its delivery. Sahara ultimately shipped the pesticide to the North Korean government for use in its chemical weapons program. Is K&L liable for the ultimate transshipment of its pesticide to North Korea? Please explain your answer.

Answer 1

Yes the exporter may be liable for diversion. Diversion is the illegal placement of goods in the hands of individuals for whom an export license would not be granted because of the country group, end use or the product itself. Exporters are liable for diversion if they had reason to know that the end user was going to direct the product to an embargoed destination. The exporter must make reasonable inquiry into the projected buyer and anticipated use. There were numerous red flag indicators present in this case that should have alerted K&L to a potential diversion of the pesticide. K&L may be liable as its customer refused to answer questions about the end use of the product. K&L may be liable as the performance requirements associated with the pesticide are inconsistent with the destination country's resources and environment. Finally, K&L should have been alerted to the possibility of diversion as its customer was willing to pay cash.