The opinion of the court was delivered by: Surrick, J.
Presently before the Court is Defendant Wagenborg Shipping BV's Motion for Summary Judgment. (Doc. No. 12.) For the following reasons, the Motion will be denied.
Robert Revak ("Plaintiff") worked as a longshoreman at a shipping terminal in the Port of Philadelphia. Plaintiff and his wife, Margaret Revak, brought this negligence action under the Longshore and Harbor Workers' Compensation Act, 33 U.S.C. §§ 901-950, after he was injured by a draft of timber that fell on him after a sling broke as the timber was being hoisted from the cargo-hold of a ship. Wagenborg Shipping, B.V. ("Defendant") owned and operated the cargo ship, the Morraborg, from which the timber fell. The following facts leading up to the accident are drawn in the light most favorable to Plaintiff as the nonmoving party.
A. Loading of the Morraborg in Sweden
On August 23, 2002, the Morraborg arrived at the port of Holmsund, Sweden, to pick up 1157 packages of sawn timber to ship to Philadelphia. (Doc. No. 12 ¶ 17; Doc. No. 49 ¶ 17.) The sawn timber had been organized into lifting units called "drafts," each of which consisted of five packages of timber weighing thousands of pounds. (Doc. No. 12 ¶ 4; Doc. No. 49 ¶ 4.)
Interforest Terminal UMEA AB ("Interforest"), a professional stevedore company in Holmsund, was responsible for loading the drafts of sawn timber into the Morraborg. (Doc. No. 12 ¶¶ 2-3; Doc. No. 49 ¶¶ 2-3.) Interforrest began loading the drafts into the vessel's cargo shortly after the ship arrived. (Id.) In order to hoist the drafts from the pier and into the cargo hold, Interforest used polyester slings that were placed under each draft and then attached to the hook of a cargo crane. (Doc. No. 12 ¶ 7; Doc. No. 49 ¶ 7.) The slings consisted of an endless loop of polyester material with a rated lifting capacity of 3.5 metric tons. (Doc. No. 12 ¶ 8; Doc. No. 49 ¶ 8.) Interforest used two slings per draft, for a total of 468 slings. (Doc. No. 12 ¶ 8; Doc. No. 49 ¶ 8; Kuursta Dep. 58.) Defendant leased the slings that Interforest used in its loading of the Morraborg from Locatum, a Swedish company in the business of supplying cargo slings to the maritime industry. (Doc. No. 12 ¶ 9; Doc. No. 49 ¶ 9.)
As a professional stevedore company, Interforest had primary control over cargo operations and required no special instructions from Defendant regarding how to properly load the drafts. (Doc. No. 12 ¶ 5; Doc. No. 49 ¶ 5.) After the drafts of timber had been placed in the cargo hold of the Morraborg, Interforest left the slings draped over each draft so that they could be used to unload the timber in Philadelphia. (See Doc. No. 50, Exs. 23B, 23C.) On August 24, 2002, Interforest finished loading the drafts. (Doc. No. 12 ¶ 17; Doc. No. 49 ¶ 17.) The hatches to the vessel's cargo holds were sealed, and the vessel departed Holmsund en route to Philadelphia. (Id.)
B. The Morraborg's Arrival in Philadelphia
The Morraborg arrived at the port of Philadelphia on September 8, 2002, after an uneventful trans-Atlantic voyage. (Doc. No. 12 ¶ 18; Doc. No. 49 ¶ 18.) Plaintiff and other employees of the J&H Stevedoring Company -- not a Defendant in this case -- began unloading the drafts. (Doc. No. 12 ¶ 19; Doc. No. 49 ¶ 19; Doc. No. 49-2 at 8.) Plaintiff's job was to assist in turning the drafts as they were being placed on the pier in Philadelphia so that forklift trucks could move the drafts into a nearby warehouse. (Pl.'s Dep. 52.) The unloading was nearly complete when, as the stevedores were hoisting the last draft from the bottom of the vessel's cargo hold and onto the pier, one of the polyester slings parted and spilled the draft onto Plaintiff, who was standing on the pier. (Doc. No. 12 ¶ 19; Doc. No. 49 ¶ 19; Pl.'s Dep. 62.) This particular draft had been stowed at the bottom of the cargo hold beneath the other drafts. (Doc. No. 12 ¶ 20; Doc. No. 49 ¶ 20.) Because of its position, neither the draft nor its slings were visible to anyone upon opening the hatches to the cargo hold. (Id.) Plaintiff was severely injured and has been unable to work since the accident.
C. Condition of the Sling after the Accident
Robert A. Erb, Ph.D., a materials scientist and Plaintiff's expert, examined the sling after the accident. (See Doc. No. 50, Ex. 35, at 5 (hereinafter "Erb Report").) The sling was "old and well worn" and had multiple abrasions, unravelings, and edge damage. (Id. at 4.) Erb concluded that the edge damage and abrasive damage on the sling pre-existed the failure on September 8, 2002, and would have been "readily visible" during an inspection of the sling before the accident. (Id.) The standards-specified label was also missing from the sling. (Id.) Erb evaluated the fibers that extended toward the break on the sling and concluded that "[t]his indicates that there was damage to the fabric in that area prior to the failure." (Id. at 5.) Captain Bijkert, the Master of the Morraborg at the time of the accident, saw photographs of the sling during his deposition. Bijkert testified that if he had seen the conditions of the sling shown in the photographs, he "should have refused it because there's a broken part on it." (Bijkert Dep. 145.) The condition of the sling was "obvious." (Erb Report, Doc. No. 50, Ex. 35, at 6.)
Defendant's general practice was to perform an accounting of the slings after every voyage. (Kuursta Dep. 31.) After cargo is unloaded from the ship and the slings are returned on board, Defendant generally counts the slings "just to see whether there's any losses and whether they have been all returned." (Id.) Defendant is invoiced for any lost slings. (Id.) During this accounting -- something less than a full inspection -- Defendant looks at the slings "to see what kind of condition they are in." (Id.) Defendant "sets aside" any slings that it deems unfit for further use. (Id. at 33.) Of the 468 slings that were loaded onto the Morraborg, Defendant and the stevedores set aside 84 of them -- or twenty percent -- as being unfit for use after the voyage. (Id. at 58.) This was an "extraordinarily high amount of slings" needing to be discarded. (Id. at 58-59.) By comparison, Defendant and the stevedores set aside 12 of the 822 slings -- less than two percent -- as unfit for use in the voyage immediately prior to the voyage to Philadelphia. (Id. at 41.)
D. Plaintiff Files Complaints
On August 22, 2003, Plaintiff filed a civil action alleging negligence against Interforest and Locatum. (See Compl., Doc. No. 1.) Plaintiff's claims against Locatum were dismissed for lack of personal jurisdiction. (See Doc. No. 36.) On September 4, 2004, Plaintiff filed a separate action for negligence against Defendant. (See Compl., Doc. No. 1, Revak v. Wagenborg Shipping BV, Case No. 04-4253 (E.D. Pa. Sept. 4, 2004).) The actions against Interforest and Defendant were consolidated ...