Case Name: Robert Revak and Margaret Revak v Interforest Terminal UMEA and Wagenborg Shipping, B.V.
Date: May 14, 2009
Court: U.S.D.C. Eastern District of Pennsylvania
Judge: Judge Surrick
Citation: 2009 WL 1362554 

Background:
Plaintiff, Robert Revak ("Revak") worked as a longshoreman at a shipping terminal in the Port of Philadelphia. Revak and his wife brought this negligence action under the Longshore and Harbor Workers' Compensation Act ("LHWCA") after Revak 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 the ship. Defendant Wagenborg Shipping BV's ("Wagenborg") brought a Motion for Summary Judgment before this Court. 

On August 23, 2002, the Morraborg arrived at a port in Sweden to pick up timber to ship to Philadelphia. Defendant, Interforest Terminal UMEA ("Interforest"), a professional stevedore company, was responsible for loading timber into the Morraborg. Interforest used slings, leased from Locatum, a Swedish company in the business of supplying cargo slings to the maritime industry, to load the timber. 

On September 8, 2002 when unloading the final draft of timber in Philadelphia, from a position that was not visible to anyone upon opening the hatches to the cargo hold, one of the slings parted and spilled timber onto Revak who was seriously injured and has been unable to work since the accident. 

Upon examination, by plaintiff's expert, the sling was found to be "old and well worn" and had multiple abrasion, unraveling, and edge damage. The expert also testified that sling damage preexisted the failure on September 8, 2002. 

Defendants file for summary judgment alleging that there is absolutely no evidence that the defendant had actual knowledge of the defective sling and that it had no duty to inspect the sling to discover defects because the sling was part of the cargo operations assigned to the stevedore and not equipment of the ship. 

Issue:
Will this Court grant defendant's Motion for Summary Judgment that it owed no duty to inspect the sling to discover defects as a matter of law? 

Held:
To trigger a vessel's turnover duty, under LHWCA, a litigant must show that (1) the shipowner had knowledge or should have had knowledge in the exercise of reasonable care of the defect and (2) that the defect would not be obvious to a competent stevedore. 

Defendant classifies the sling as cargo stow and the plaintiff classifies it as equipment based on its function as a tool. The plaintiff contends that the slings are equipment or at least not cargo because defendant leases the slings and provides them to the stevedores for repeated use. Nontheless, the issue presented presents a genuine issue of material fact that can only be sorted out by a finder of fact. 

Defendant also asserts that the plaintiff's claim must fail because there is no evidence defendant had "actual knowledge of the defective sling". However this Court holds that actual knowledge is not required before liability will attach. All that is required under the turnover duty is that the injury results from the failure, of the vessel, to exercise due care that is reasonably foreseeable. Moreover, this Court held that a reasonable jury could conclude that the defective sling was a hazard and neither obvious nor anticipated by a skilled stevedore in the competence performance of his work. The sling was hidden as it was being unloaded and could not have been noticed by a stevedore in the plaintiff's position. 

Regardless, this Court, citing the Third Circuit, held that whether a defect is obvious is generally a question for  the jury and not appropriately decided on a motion for summary judgment. 

Accordingly, the defendant's Motion for Summary Judgment was denied as the plaintiff introduced evidence that presented genuine issues of material fact whether the sling would be considered cargo and whether defendant owed a duty of care to prevent the defective sling from being used. 

Comment:
Under the LWCHA, the vessel has a turnover duty. To establish a breach of the turnover duty, the litigant must show (1) the shipowner had knowledge or should have had knowledge in the exercise of reasonable care of the defect and (2) that the defect would not be obvious to a competent stevedore.  

If the defect involves cargo, as argued by the defendant, then the shipowner is not liable for injuries resulting from a defect in the cargo. However, if the defect involves equipment of a ship, then the shipowner will be liable if they had knowledge or should have had knowledge in the exercise of reasonable care, and the defect would not have been obvious to a skilled stevedore.  

Steve Gordon
http://www.offshoreinjuries.com