Full opinion text
MEMORANDUM AND ORDER ALEXANDER HARVEY, II, Senior District Judge. In this multidistrict litigation, a number of civil actions have been coordinated and consolidated for pretrial purposes pursuant to 28 U.S.C. § 1407. Since the Transfer Order of the Judicial Panel on Multidistrict Litigation dated February 8, 1990, various pretrial proceedings in these cases have been held in this Court, and, pursuant to Pretrial Order No. 2, the parties have heretofore engaged in extensive discovery. Both plaintiffs and defendants have now filed motions for partial summary judgment, all of which are pending before the Court for decision. There are four pending suits which have been brought by railroad entities against Lone Star Industries, Inc. (hereinafter “Lone Star”) and its subsidiary San-Vel Concrete Corporation (hereinafter “San-Vel”), each of which seeks a recovery for losses incurred by the premature cracking and deterioration of concrete railroad cross ties purchased by the railroads from Lone Star. Named as third-party defendants in each of these four suits are La-Farge Corporation and two of its subsidiaries, LaFarge Canada, Inc. and Northeast Cement Company, Inc. (hereinafter referred to collectively as “LaFarge”). The third-party complaints allege that the cement furnished by LaFarge to Lone Star was defective. The plaintiff railroads have all moved for partial summary judgment on the issue of liability claiming that no genuine issue of material fact exists and that they are entitled to judgment as a matter of law as to some of the claims which they have asserted. Lone Star has also filed motions seeking partial summary judgment in its favor as to various claims asserted by the railroads. Voluminous memoranda and numerous exhibits, deposition excerpts and affidavits have been filed by the parties both in support of and in opposition to the pending motions. Oral argument has been heard in open Court. For the reasons to be stated, plaintiffs’ motions for partial summary judgment will be denied, and defendants’ motions for partial summary judgment will be granted in part and denied in part. I Facts These actions arise as a result of the premature cracking and deterioration of some 500,000 concrete railroad cross ties purchased from Lone Star by various railroad entities between 1983 and 1988. The concrete ties purportedly had a service life of 50 years. However, in August of 1988, National Railroad Passenger Corporation (hereinafter “Amtrak”) advised Lone Star that concrete ties sold to it by Lone Star had exhibited signs of cracking and deterioration. Thereafter, Lone Star informed its other customers of the possibility of deterioration and, upon performing track inspections, these customers determined that the ties which had been sold to them were deteriorating as well. After the deterioration of the ties was discovered, several civil actions were filed in this Court. On July 10, 1989, suit was filed in this Court against Lone Star by CSX Transportation, Inc. (hereinafter “CSX”), and claims of breach of contract, breach of warranties and strict liability were therein asserted. Civil No. H-89-2005. On November 6, 1989, Amtrak filed suit against Lone Star asserting similar claims. Civil No. H-89-3085. On December 6, 1989, Lone Star sued LaFarge claiming breach of contract and breach of warranties. Civil No. H-89-3343. On February 8, 1990, the Judicial Panel on Multidistrict Litigation entered an Order transferring all related eases to this Court for consolidated pretrial proceedings pursuant to 28 U.S.C. § 1407. Suits filed in the District of Massachusetts against Lone Star by Metro-North Commuter Railroad Company (hereinafter “Metro-North”) and the Massachusetts Bay Transportation Authority (hereinafter the “MBTA”) were accordingly transferred to this Court. Civil Nos. H-90-748 and H-90-1741. From time to time status conferences have been held with counsel in all consolidated cases in attendance, and Pretrial Orders Nos. 1, 2, 3 and 4 have heretofore been entered by the Court. On December 10, 1990, Lone Star and its subsidiary San-Vel filed Chapter 11 bankruptcy petitions in the United States Bankruptcy Court for the Southern District of New York. Further proceedings in the multidistrict litigation pending in this Court were thereupon stayed pursuant to the provisions of 11 U.S.C. § 362. Following a hearing held on March 20, 1991, the Bankruptcy Court issued an Order lifting the automatic stay with respect to certain aspects of the litigation pending in this Court and permitting the filing of motions for summary judgment. On June 13, 1991, the Bankruptcy Court modified its earlier Order and permitted suits against Lone Star included in this multidistrict litigation to continue to final judgment. Thereafter, plaintiffs and defendants filed the motions for partial summary judgment which are now pending before the Court. (a) Concrete Cross Ties Concrete railroad cross ties, although widely used in Europe and Asia since World War II, are a relatively new product in the United States. Railroads in the United States typically utilize larger freight cars with heavier loads in longer, heavier trains than the rail industry in Europe and elsewhere. Because of these differences, the acceptance of concrete ties by railroads in the United States was slow. It was not until Amtrak purchased some 1.1 million concrete ties from Sante Fe Pomeroy/San-Vel in 1977 that the American railroad industry began to view concrete ties as a viable alternative to traditional wooden ties. Concrete ties roughly consist of stretched steel tendons around which a certain type of cement is poured. Once the cement has hardened, the steel tendons are released and permitted to contract into the tie, although the tendons may thereafter be visible at the ends of the tie. The concrete tie absorbs stress and force through an interplay between the strength of the steel tendon, the strength of the concrete, and the force they exert against each other. Concrete ties are more expensive than wooden ties. According to a Lone Star memorandum, the price of a concrete tie is approximately $70.00 per tie, while wooden ties cost approximately $40.00 per tie. However, concrete ties are expected to last longer than wooden ties. The service life of wooden ties ranges from 15-30 years while concrete ties are designed to have a service life of some 50 years. Other advantages of concrete ties may be lower maintenance costs, higher speeds and lower fuel consumption of trains and fewer derailments. In addition, wooden ties are normally treated with creosote, a chemical which may be harmful to the environment and, in light of recent stricter environmental legislation, disposal of wooden ties after use is more difficult. Lone Star entered the concrete railroad tie industry in 1979 when it purchased San-Yel. Shortly thereafter, Lone Star began a marketing and advertising campaign to promote the use of concrete ties throughout the United States. In July, 1981, Lone Star hired David A. Pittinger as its National Sales Manager, Railroad Products. Pit-tinger was given the responsibility of contacting railroad executives and convincing them of the desirability of using concrete ties. Pursuant to this assignment, Pitting-er called upon the chief engineers of a number of prominent railroads, including Amtrak and CSX. In his deposition, Pit-tinger stated that he had told railroad executives that the concrete ties would have a 50-year service life. Pittinger reported first to William L. Read, Vice President of Lone Star’s Railroad Products Group, and then later to Dennis Kash, who assumed that position in June of 1983. In an interoffice memorandum dated October 12, 1982, Read of Lone Star discussed the Company’s marketing strategy. Read stated that, in order for concrete ties to be used widely in the United States, Lone Star would need to convince the railroads that the benefits of concrete ties justified the greater initial costs. The benefits outlined by Read were lower maintenance costs, higher track availability, lower fuel consumption, and fewer derailments. In September of 1982, Lone Star had published a study entitled the “Economic Comparison of Concrete and Wood Railroad Ties.” The study stated that concrete ties had a longer tie life and promoted longer rail life and wheel wear. The study also stated that because concrete ties required less maintenance, the railroads would have more track available at any given time. The study concluded that the initial higher cost of concrete ties would be recovered anywhere from 2-10 years depending on the type of track. During their visits to the various railroads, Lone Star representatives provided the railroads with a copy of the “Economic Comparison” study. In other brochures published in 1983 and 1984, Lone Star advertised its concrete ties as having longer tie life and greater reduced maintenance than wooden ties. One brochure stated: Concrete ties are designed for a fifty-year life. Structural analysis, laboratory tests, and long-term service prove that fifty years is a realistic assumption ... [h]igh strength, prestressed, air-entrained concrete resists weather, abrasion, chemical reaction, moisture, and freezing and thawing cycles. In one article published in the November, 1983 issue of “Concrete Construction,” Kash stated that “[concrete ties] will function without failing for 40 to 50 years.” These other brochures were also given to railroad executives during periodic visits. Like Pittinger, Kash testified at his deposition that he believed a concrete tie would last for fifty years and that he had told his sales force as much. Representatives of Lone Star attended the 1982 and 1985 Roadmasters conventions in Chicago and Dallas and promoted the use of concrete ties. In 1986, Lone Star produced a promotional video which was shown to prospective customers during sales calls. From time to time, representatives of Lone Star made numerous sales calls on railroad chief engineers throughout the country. (b) Transactions with Amtrak and MBTA Amtrak operates a railroad system running from Washington, D.C. to Boston, Massachusetts, known as the Northeast Corridor. The Northeast Corridor is the most heavily travelled rail segment in the country and is used for both high-speed passenger traffic and lower-speed commuter and freight traffic. A fifteen-mile stretch of the Northeast Corridor located near Boston is owned by the MBTA. These fifteen miles of track are known as the MBTA’s Southwest Corridor. Pursuant to an agreement between MBTA and Amtrak, Amtrak maintains the track and railbed of the Southwest Corridor, although MBTA owns the track, railbed, and appurtenant structures. In the early 1970’s, the Federal Railroad Administration (FRA) contracted with the private engineering firm of De Leuw, Cather/Parsons (hereinafter “DCP”) to assess the benefits of replacing existing wooden ties on the Amtrak lines with concrete ties. DCP issued a number of reports, the last of which recommended that concrete ties be installed on the high speed designated passenger tracks of the Northeast Corridor. This decision was based on the conclusion of DCP that, although the initial cost of concrete ties would be greater, concrete ties would have a longer service life than wooden ties and would require less maintenance. On August 9, 1977, Amtrak issued a Solicitation for Technical Proposals for the procurement of 1.1 million concrete ties. Attached to the Solicitation was the first draft of a lengthy document entitled “Concrete Tie and Fastening Assembly Technical Provisions” (hereinafter the “Technical Provisions”) which contained the specific requirements for the design of concrete ties. The Technical Provisions specified, among other things, the type of cement to be used, the amount of air to be entrained, the type of pre-stressing material to be used, and the size, shape, and weight of the ties. The Technical Provisions also described a series of quality control tests to be conducted during the manufacture of the ties prior to acceptance. From August to November, 1977, the Technical Provisions underwent four revisions, and, on December 13, 1977, Amtrak awarded a contract for the purchase of ties to Santa Fe/San-Vel, a joint venture between Santa Fe-Pomeroy, Inc. and San-Vel Concrete Corporation. The specifications contained in the final form of the Technical Provisions became the standard specifications for all concrete ties at issue in this litigation, although some minor changes were made to accommodate the track dimensions of certain customers. The initial ties purchased by Amtrak were manufactured at San-Vel’s facility in Littleton, Massachusetts and, to date, have performed satisfactorily. Shortly thereafter, Lone Star acquired San-Vel, became the owner of the facility in Littleton, Massachusetts and began a campaign to promote the sales of concrete railroad ties. In 1983, Congress approved funding for the installation of additional concrete ties on some 190 miles of the Northeast Corridor, including the MBTA’s Southwest Corridor. On June 6,1983, Amtrak, the MBTA and the FRA entered into the “Southwest Corridor Ties and Rail Purchase and Sale Agreement” (hereinafter the “Tie Purchase Agreement”). Amtrak agreed to furnish concrete ties to the MBTA for installation on the Southwest Corridor. Pursuant to a Congressional mandate that Amtrak service be improved, the FRA agreed to defray the majority of MBTA’s costs, although some payment by the MBTA was contemplated. The Tie Purchase Agreement also provided: The title and risk of loss of materials delivered under this Agreement will pass to MBTA upon delivery and acceptance by MBTA. Amtrak will assign to MBTA any applicable warranties on materials delivered and accepted. On May 23, 1983, Lone Star and three other firms submitted offers in response to a “Request for Quotations” (hereinafter the “RFQ”) issued by Amtrak. The RFQ contained a set of specifications drawn in large part from Amtrak’s 1977 Technical Provisions. One difference was the addition of a requirement that the concrete be air entrained between two and five percent. Between May 23, 1983 and July 13, 1983, Amtrak entered into negotiations with Lone Star and with another firm, both of which submitted acceptable bids. On August 5, 1983, Amtrak accepted Lone Star’s best and final offer for the purchase of a large number of concrete railroad ties. Amtrak issued five purchase orders for a total of 355,500 ties under this 1983 contract. The ties were manufactured at San-Vel’s facility in Littleton, Massachusetts and were shipped to Amtrak between February of 1984 and March of 1989. Approximately 36,000 ties were delivered to the MBTA and were manually installed on the MBTA’s Southwest Corridor. The ties were installed by Amtrak on the Northeast Corridor using a mechanical Track Laying System (hereinafter the “TLS”) which Amtrak had previously used to install the ties purchased in 1977. Amtrak contends that it followed the same maintenance and inspection procedures for the 1983 ties as it had for the 1977 ties. Virtually all of those ties were made with cement purchased by Lone Star from LaFarge although, as La-Farge notes, some ties which were made with cement manufactured by Lone Star itself have also begun to deteriorate. During manufacture in Massachusetts of the concrete ties purchased pursuant to the 1983 contract, agents and employees of Amtrak continuously inspected the ties. Amtrak hired the independent consulting firm of Briggs Engineering (hereinafter “Briggs”) to perform a large part of these inspections. The contract between Amtrak and Briggs specified that Briggs would conduct a series of tests on the cement in order to determine that it complied with applicable specifications. Amtrak civil engineers also inspected each so-called “line” of ties (consisting of approximately 550 ties) and confirmed their approval of each line by signing an acceptance report. In June of 1988, Amtrak discovered premature cracking of the ties during routine track maintenance. Continued inspections disclosed that the cracking of the ties had resulted in a loss of prestress in some ties as evidenced by pull-in of the prestressed steel. In addition, a number of ties which had not been installed on the tracks but had remained in storage also showed signs of cracking and deterioration. In August of 1988, Amtrak informed Victor Burton, Lone Star’s Vice President for Production, of the cracking. On October 25, 1988, Burton and Richard Fredette, Lone Star’s Quality Control Manager, physically inspected cracked ties installed in Edison, New Jersey and collected samples for testing. At that time, representatives of Lone Star also inspected deteriorating ties that had been installed by the MBTA on its Needham line. Sixteen of those ties were removed at Lone Star’s request for testing. Between October of 1988 and August of 1989, Lone Star and Amtrak engaged in a series of discussions concerning the causes of the ties’ deterioration and the possibility that the reduced strength of the ties would affect the safety of operations on the tracks. During this time, Lone Star was also informed by CSX that ties sold to CSX in 1984 had begun to crack and deteriorate. In March of 1989, Lone Star informed its other customers that ties sold by it to Amtrak had experienced premature deterioration. On May 12, 1989, Burton wrote to Lone Star’s customers stating in pertinent part as follows: ... Lone Star is directing this letter to you as the direct contact between Lone Star and your railroad concerning concrete cross ties. It is important that this letter be forwarded to the appropriate railroad official responsible for track maintenance and safety. We would ap-precíate your cooperation in achieving this promptly. * * * * * * ... Ties which formerly appeared to be satisfactory have deteriorated over a relatively short period of time to a point where the railroad in question is replacing them. At its worst, this deterioration results in loss of prestress in the ties which could adversely affect the load carrying capabilities. It is possible that routine track inspection would not reveal this loss of prestress force. During inspection, particular attention should be given to the ends of the ties where pull-in of strand could indicate such loss. On August 15, 1989, Stephen C. Rogers, Amtrak’s General Counsel, wrote to John Martin, Vice President of Lone Star, stating that Amtrak believed the ties to be in breach of the 1983 contract and the warranties made thereunder. On October 18, 1989, Rogers again wrote to Martin communicating Amtrak’s formal rejection and revocation of acceptance of all ties purchased under the 1983 contract. Beginning in May of 1989, Amtrak had replaced a number of concrete ties on a “spot” replacement basis. According to Amtrak, it has determined that spot replacement is inefficient because such a large number of ties are deteriorating that the continuous inspection and grading process consumes more resources than would overall replacement of the ties. Based on this determination, Amtrak has now begun to replace each and every tie. (c) The Amtrak Specifications The contract entered into between Amtrak and Lone Star consisted of the RFQ, the Technical Provisions and a lengthy document entitled “General Provisions.” Paragraph 1.4.1. of the Technical Provisions stated that the concrete ties will be used in the Northeast Corridor and “shall be suitable for service exposed in that environment.” Paragraph 2.1 of the Technical Provisions addresses the performance of the concrete ties, as follows: The intent of this specification is to obtain uniform quality, durability, and performance throughout the design service life of 50 years for concrete ties and shoulder inserts and 15 years for other components with minimum maintenance. Paragraph 2.2 of the Technical Provisions contains a number of detailed requirements for the concrete to be used. The Technical Provisions also state that, at the time of manufacture, daily inspections would be conducted and that visible cracking of individual ties would be cause for rejection of the entire lot of ties produced. The General Provisions discuss a range of inspection procedures, the allocation of risk of loss, and warranties. Clause 5 of the General Provisions states that all supplies shall be subject to inspection and test by Amtrak at all times during manufacture and prior to acceptance. Subparagraphs (b) and (d) read in pertinent part as follows: (b) In case any supplies or lots of supplies are defective in material or workmanship or otherwise not in conformity with the requirements of this contract, AMTRAK shall have the right either to reject them (with or without instructions as to their disposition) or to require their correction. ****** (d) The inspection and test by AMTRAK of any supplies or lots thereof does not relieve the Contractor from any responsibility regarding defects or other failures to meet the contract requirements which may be discovered prior to acceptance. Except as otherwise provided in this contract, acceptance shall be conclusive except as regards latent defects, fraud, or such gross mistakes as amount to fraud. Clause 15 of the General Provisions ad- dresses the question of risk of loss. This Clause states generally that the risk of loss passes to Amtrak at the F.O.B. point of delivery, but that passage of title to Amtrak shall not in any way relieve Lone Star of its obligations under the contract, nor shall it be treated as a waiver of Amtrak’s right to later reject any supplies which failed to meet any warranty expressed or implied. Clause 27 of the General Provisions is entitled “Warranty of Supplies.” The Clause reads in pertinent part as follows: (a) Notwithstanding inspection and acceptance by AMTRAK of supplies furnished under this contract or any provision of this contract concerning the conclusiveness thereof, the contractor warrants that at the time of delivery; (i) all supplies furnished under this contract will be free from defects in material or workmanship and will conform with the specifications and all other requirements of this contract. ... (b) The Contracting Officer shall give written notice to the Contractor of any breach of the warranties in paragraph (a) of this clause within one year after delivery of the nonconforming supplies. Subparagraph (i) of Clause 27 expressly disclaims implied warranties of merchantability and fitness for a particular purpose. Subparagraph (j) states that the rights and remedies provided in Clause 27 are in addition to and do not limit any rights afforded to Amtrak by any other clause of the contract. (d) Transactions with Metro-North Metro-North is a New York Public Benefit Corporation which owns and operates a commuter railroad system providing daily passenger service to New York City for approximately 95,000 commuters living in upstate New York and Connecticut. Portions of Metro-North’s track system also carry light freight traffic. Metro-North and Lone Star first entered into negotiations for the purchase of concrete ties in March of 1984. At that time, Metro-North stated that it was interested in purchasing ties for a three mile stretch of electrified track located in a deep cut between two 20-foot stone retaining walls, an area in which the drainage conditions were very poor. This poor location of the track made tie replacement, inspection, and maintenance costs very high, and Metro-North sought to reduce these costs by purchasing concrete ties. Although Metro-North asserts that wooden ties last up to thirty years, there is evidence in the record that, with respect to this stretch of track, wooden ties were replaced approximately every six years. On March 29, 1984, Metro-North’s Assistant Track Engineer, David L. Ordas, met with three Lone Star representatives, Kash, Burton and Phillip J. McQueen, Lone Star’s technical consultant. At that meeting, Lone Star recommended what it termed “the AMTRAK tie” for use by Metro-North with some adaptations. Following the meeting, Lone Star sent to Metro-North a copy of the Amtrak Technical Provisions and a number of drawings of both the concrete tie and the concrete tie assembly. Lone Star also offered the services of their technical consultant, McQueen, to help revise the specifications to meet Metro-North’s needs. In the next several months, Metro-North reviewed the information provided by Lone Star and inspected concrete ties in service on the Northeast Corridor. In December of 1984, Lone Star sent to Metro-North a series of revisions to be made to the specifications, and those revisions were adopted by Metro-North. There was a need to design a third-rail support plate to be affixed to the tie, and Metro-North engineers apparently revised the original design of the bracket plate. Metro-North did require that Lone Star submit to Metro-North for examination a complete design analysis of the proposed tie and associated hardware which included information regarding the physical and chemical compositions of the concrete batch. On February 27, 1985, Metro-North issued a formal RFQ for the purchase of 7,428 concrete ties and 1,857 concrete rail support plates. The RFQ was accompanied by specifications developed during discussions with Lone Star. Lone Star was the only bidder. Its bid was submitted on March 19,1985 and incorporated a separate “design drawing” submitted by McQueen, the technical consultant. The final tie design was named the “Lone Star Type TA-2” tie and was later offered for sale to other transit companies. Metro-North accepted Lone Star’s bid and, on April 24, 1985, issued the first purchase order for 7,428 concrete ties at a unit price of $62.20 per tie. The purchase order contained a set of terms and conditions which stated, inter alia, that all warranties, express and implied, applied to any articles furnished and would not be excluded or modified. In August of 1986, Metro-North made a second purchase of 1,000 additional ties at a unit price of $65.58 per tie. The ties purchased in 1986 were manufactured pursuant to the Type TA-2 design used to make the earlier ties. The 1986 purchase order contained the same warranty provisions as the 1985 purchase order. The first set of ties purchased were delivered by Lone Star to Metro-North between August and October of 1985. The majority of those ties were installed on the three-mile track of the Harlem line described hereinabove, and the remainder were stockpiled. Lone Star ties were again laid on the Harlem line in September and October of 1986 after the second set of ties were delivered. Following this installation, 617 ties were stockpiled in Metro-North’s Mott Haven railroad yard located in the Bronx, New York. The stockpiled ties were stacked in uncovered tiers and have never been used. In 1988, Metro-North issued an RFQ for the purchase of an additional 26,500 ties. The RFQ was made on the basis of a slightly revised version of the original technical specifications used in 1985. The revisions did not change the structural or concrete specifications for the ties. Lone Star submitted its bid by letter dated March 31, 1988, in which it offered for sale 26,500 Type TA-2 ties identical to those supplied to Metro-North in 1985 and 1986. Metro-North accepted Lone Star’s bid and issued a purchase order on June 1, 1988. An additional 3,000 ties were purchased from Lone Star in July of 1988 under a slightly modified design styled the “Type TA-3” ties. These ties were identical except that the rail seat dimensions were modified to accommodate a 132 RE rail rather than a 119 RE rail. In August of 1988, prior to the manufacture by Lone Star of any of the ties purchased by Metro-North in June and July of 1988, Lone Star was informed by Amtrak that its concrete ties had begun to deteriorate prematurely. Nevertheless, on November 2, 1988, Lone Star began to manufacture ties pursuant to Metro-North’s two 1988 purchase orders. In March of 1989, Lone Star informed Metro-North that other Lone Star customers had begun to detect premature deterioration in concrete ties similar to those purchased by Metro-North. In April of 1989, Metro-North conducted an inspection of its tracks which confirmed that the ties sold by Lone Star to it had begun to deteriorate prematurely as well. Stockpiled ties at the Mott Haven yard in the Bronx had also begun to deteriorate. In light of this discovery, Metro-North notified Lone Star that it would not accept delivery of Lone Star ties unless Lone Star (1) demonstrated that the new ties were free of the defect which caused deterioration in the 1985/1986 ties; (2) compensated Metro-North for the deteriorating ties; and (3) provided written assurances of the quality of the new ties. On May 5, 1989, representatives of Lone Star met with Metro-North officials to discuss the deteriorating ties. Lone Star was unable to provide an explanation for the cracking. Lone Star stated at the time that it had produced 14,000 ties for the 1988 purchase orders and could not guarantee their quality. After Lone Star had written to its customers informing them of the potential safety hazards posed by the deteriorating ties, Lone Star again wrote to Metro-North stating that it would provide a warranty on the new ties to the effect that, should they deteriorate on an accelerated basis, Lone Star would deliver a replacement tie to a Metro-North yard for twenty years after delivery of the ties. This warranty did not include any offer by Lone Star to pay the costs of inspecting the ties or any of the costs of replacement of the ties. Metro-North considered this warranty offer to be inadequate. By letter dated June 29, 1989, Metro-North cancelled the two 1988 purchase orders. (e) Transactions with CSX CSX is a freight railroad which conducts passenger operations for Amtrak in certain areas. CSX conducts its railroad operations in some 20 states in the United States as well as in Ontario, Canada and is engaged mainly in the hauling of freight or coal. CSX is the successor in interest of the Chessie System Railroads. In early 1984, Pittinger of Lone Star began negotiations with the Chief Engineer of CSX for the sale of concrete cross ties to be installed on a stretch of track located near Deepwater, West Virginia. On May 17, 1984, CSX placed an order with Lone Star for the purchase of 13,500 cross ties. The purchase order provided for the purchase of the Lone Star “M” cross ties, and Pittinger testified at his deposition that this was a standard tie offered by Lone Star. Although the “M” cross tie was in fact the same tie manufactured by Lone Star for Amtrak, the ties were not customized for CSX in any fashion, nor did the purchase order incorporate the Amtrak Technical Provisions as did the Metro-North orders. During installation of these ties, Lone Star’s representatives Pittinger and McQueen visited the CSX site and determined that the roadbed and track had been properly and carefully prepared by CSX. In 1985, CSX purchased an additional 16,300 concrete ties from Lone Star for installation on a stretch of track located in Covington, Virginia. For this purchase, CSX issued a formal Inquiry and had attached to the Inquiry a copy of the Amtrak Technical Provisions. In a letter dated March 7, 1985, Lone Star offered for purchase the “MA-3” concrete tie. It was stated at the time of the offer and is not now disputed that the “MA-3” tie is identical to the “M” tie purchased by CSX in 1984. An order was issued by CSX to Lone Star for the purchase of these “MA-3” ties. During installation of this second set of CSX ties, James Lawson of Lone Star visited the site in Virginia. Lawson later reported to Kash: It appears to me that an excellent job of grading was performed in this particular area and this will probably be one of the premier test installations in the United States for concrete ties ... ‡ }|( ‡ >)< $ ‡ In my opinion, the care, time and money that Chessie has thus far performed on this installation, should make it an absolute show place for us to show potential customers of concrete ties. In March of 1989, CSX representatives met with Lone Star to discuss the fact that ties were deteriorating. At this meeting, CSX requested an immediate shipment of 200 replacement ties for those ties which CSX sought to remove for safety reasons. Lone Star advised that it would send no ties without a purchase order. After CSX objected, Lone Star eventually agreed to send these ties. Thereafter, CSX commenced “spot” replacement of deteriorated ties. Following receipt of Burton’s letter of May 12, 1989 warning of potential loss of prestress and following a period of some five months in which the ties continued to deteriorate, CSX removed all concrete ties in late 1989. CSX asserts that removal of all these ties was necessary to avoid possible deterioration and safety problems during the more severe weather of the winter months. (f) Rate of Deterioration In early 1989, CSX and Lone Star developed a common rating system whereby deteriorating ties were divided into five grades as follows: Grade 1. No visible cracks. Grade 2. Longitudinal unconnected cracks on the tie ends. Grade 3. Longitudinal cracks extending from the ends toward the center of the tie and transverse lines beginning to form. Grade 4. Large cracks on both end and center joined to form map cracking and some bond release. Grade 5. Total bond release and loss of ability to hold clip shoulder in place. Ties which fell into either the Grade 4 or the Grade 5 category were considered to have suffered a loss of prestress which could affect their load carrying capabilities. In moving for partial summary judgment, all of the railroads have referred to this rating system. Amtrak states that, as of July 30, 1990, 6.80% of the ties it purchased were rated Grade 3 or worse. The MBTA states that 4 out of every 5 concrete ties in the Southwest Corridor have deteriorated to Grade 2 or more and that approximately 24% of all such ties have deteriorated to Grade 3 or more and may be unsound. An evaluation of the deterioration of CSX ties is set forth in a letter to Lone Star dated April 14, 1989, in which CSX furnished Lone Star with the results of inspections made over a one month period. For the approximately one month period, from March of 1989 to April of 1989, the percentage of CSX ties installed in Deep Water, West Virginia and rated Grade 5 increased from 1.3% to 4.8%. The percentage of CSX ties rated Grade 4 increased from 1.2% to 8.1% during that same period. According to Metro-North, 20% of its installed ties had reached Grade 4 or worse at the time of an inspection on March 31, 1991, and approximately 75% of all its ties exhibited some form of visual cracking. II The Claims In Civil No. H-89-2005, CSX has sued Lone Star asserting four separate claims. Count I alleges a breach of implied warranty of fitness for the particular purpose, and Count II alleges a breach of implied warranty of merchantability. Count III alleges a breach of express warranties, and Count IV alleges that Lone Star was negligent in the design, manufacture, and testing of the ties. In its amended complaint filed in Civil No. H-89-3085, Amtrak has asserted six claims against Lone Star, as follows: (1) breach of express warranties within the contract; (2) breach of express warranties based on representations; (3) breach of contract; (4) strict liability; (5) negligence; and (6) negligent misrepresentation. In Civil No. H-90-748, Metro-North has sued Lone Star asserting six separate claims, as follows: (1) breach of express warranties; (2) breach of implied warranty of merchantability; (3) breach of implied warranty of fitness for the particular purpose; (4) breach of contract; (5) negligence; and (6) negligent misrepresentation. The complaint filed by the MBTA in Civil No. H-90-1741 alleges five separate claims against Lone Star, as follows: (1) breach of express warranties; (2) breach of contract; (3) negligence; (4) strict liability; and (5) violation of Mass.Gen.Laws ch. 93A § 2 by engaging in unfair and deceptive acts and practices. Ill Summary Judgment Principles As set forth in Rule 56(c), F.R.Civ. P., the standard for the granting of a motion for summary judgment is that the moving party show “that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” One of the purposes of Rule 56 is to require a party, in advance of trial and after a motion for summary judgment has been filed and supported, to come forward with some minimal facts to show that it may not be liable under the claims alleged or subject to the defenses asserted. See Rule 56(e). A “mere scintilla of evidence is not enough to create a fact issue; there must be evidence on which a jury might rely,” Barwick v. Celotex Corp., 736 F.2d 946, 958-59 (4th Cir.1984), quoting Seago v. North Carolina Theatres, Inc., 42 F.R.D. 627, 640 (E.D.N.C.1966), aff'd, 388 F.2d 987 (4th Cir.1967). In the absence of such a minimal showing, a party moving for summary judgment should not be required to undergo the expense of preparing for and participating in a trial of the issue challenged. See Anderson v. Liberty Lobby, 477 U.S. 242, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); and Celotex Corp. v. Catrett, 477 U.S. 317,106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). However, the burden is on the party moving for summary judgment to show that no genuine issue of fact exists and that the movant is entitled to judgment as a matter of law. Barwick v. Celotex, supra, at 958. The facts and the inferences to be drawn from the facts must be viewed in a light most favorable to the nonmoving party. Ross v. Communications Satellite Corp., 759 F.2d 355, 364 (4th Cir.1985). The Fourth Circuit has consistently repeated its holding in Pierce v. Ford Motor Co., 190 F.2d 910, 915 (4th Cir.), cert. denied, 342 U.S. 887, 72 S.Ct. 178, 96 L.Ed. 666 (1951), that summary judgment is a drastic measure which should not be granted unless it is perfectly clear that there are no genuine issues of material fact in the case. Ballinger v. North Carolina Agricultural Extension Service, 815 F.2d 1001, 1004-1005 (4th Cir.), cert. denied, 484 U.S. 897, 108 S.Ct. 232, 98 L.Ed.2d 191 (1987); Kirkpatrick v. Consolidated Underwriters, 227 F.2d 228 (4th Cir.1955). Summary judgment should not be granted if inquiry into the facts is desirable to clarify the application of the law. Pierce v. Ford Motor Co., supra at 915. The Fourth Circuit has further emphasized that summary judgment is seldom appropriate in cases in which particular states of mind are decisive as elements of a claim or defense. Ballinger, 815 F.2d at 1005, citing Charbonnages de France v. Smith, 597 F.2d 406, 414 (4th Cir.1979). Cases which turn on a finding of intent are not ordinarily appropriate for disposition by way of a motion for summary judgment since resolution of such an issue depends on the credibility of the witnesses which can best be determined by the trier of fact after observation of the demeanor of the witnesses during direct and cross-examination. Morrison v. Nissan, Ltd., 601 F.2d 139, 141 (4th Cir.1979). Applying these principles to the facts of record here, this Court finds and concludes that plaintiffs’ motions for partial summary judgment must be denied, and that defendants’ motions for partial summary judgment must be granted in part and denied in part. The motion for summary judgment dismissing counterclaim filed by plaintiff Metro North will also be denied. IV Lone Star’s Motions for Partial Summary Judgment (a) Statute of Limitations Lone Star contends that it is entitled to summary judgment as to the warranty and contract claims asserted by the plaintiffs because they are time-barred under § 2-725 of the Uniform Commercial Code (hereinafter the “U.C.C.”), which has been adopted in Maryland, the District of Columbia and New York and which provides that suit must be brought within four years after a cause of action has accrued. In each jurisdiction, § 2-725 of the U.C.C. provides as follows: (1) An action for breach of any contract for sale must be commenced within four years after the cause of action has accrued. By the original agreement the parties may reduce the period of limitation to not less than one year but may not extend it. (2) A cause of action accrues when the breach occurs, regardless of the aggrieved party’s lack of knowledge of the breach. A breach of warranty occurs when tender of delivery is made, except that where a warranty explicitly extends to a future performance of the goods and discovery of the breach must await the time of such performance the cause of action accrues when the breach is or should have been discovered. (Emphasis added) Md.Com.Law Code § 2-725 (1975); D.C.Code Ann. § 28:2-725 (1963). Plaintiffs concede that § 2-725 governs the transaction at issue. However, plaintiffs argue that the purchase agreements in this case include a warranty which explicitly applies to a future performance of the goods. As noted, Paragraph 2.1 of the Amtrak specifications stated: The intent of this specification is to obtain uniform quality, durability, and performance throughout the design service life of 50 years for concrete ties.... Plaintiffs contend that the provision cited hereinabove created an express warranty which explicitly extended to future performance. Plaintiffs also point to statements made in Lone Star brochures and other materials touting the lower life cycle cost of concrete ties, statements which plaintiffs contend constituted an express warranty of future performance. According to plaintiffs, it makes little sense to construe representations relating to the longer life of the product and specifications relating to quality, durability and performance as warranties applicable to the condition of the product only upon delivery. An express warranty is defined as any affirmation of fact or promise made by the seller to the buyer which relates to the goods and becomes part of the basis of the bargain. Such statements create an express warranty that the goods shall conform to the affirmation or promise. § 2-313(1). It is not necessary that the seller use formal language such as “warrant” or “guarantee” or that the seller have the specific intention to extend a warranty; however, an affirmation merely of value or a statement of the seller’s opinion or commendation does not create a warranty. § 2-313(2). For a warranty of future performance to exist under § 2-725, the terms of the warranty must unambiguously and explicitly indicate that the manufacturer is warranting the future performance of the goods for a specified period of time. R. W. Murray Co. v. Shatterproof Glass Corp., 697 F.2d 818 (8th Cir.1983). The term “explicit” has been defined as “not implied merely, or conveyed by implication; distinctly stated; plain language; clear; not ambiguous; express; unequivocal.” Binkley Company v. Teledyne Mid-America Corp., 333 F.Supp. 1183 (E.D.Mo.1971). In Mittasch v. Seal Lock Burial Vault, Inc., 42 A.D.2d 573, 344 N.Y.S.2d 101 (1973), twelve years after the purchase of a casket, plaintiff brought suit when it was discovered upon exhumation that the casket had leaked. The seller had provided plaintiff with a certificate of assurance which stated that the casket would be “free from material defects or faulty workmanship and will give satisfactory service at all times.” 344 N.Y.S.2d at 103. The Court held that the seller’s statement constituted an explicit warranty of future performance. Id. at 103. It has also been held that when a vendor warrants the quality of goods, such warranty is breached when tender of delivery is made, but where a vendor warrants the performance of goods, that warranty necessarily contemplates a reasonable period of performance during which the defect or failure would manifest itself. Iowa Manufacturing Co. v. Joy Manufacturing Co., 206 Mont. 26, 669 P.2d 1057, 1060 (1983). Lone Star argues that the language of the specifications and the statements made in its promotional literature are similar to other representations which have been held not to be a warranty of future performance. For example, in Jones & Laughlin Steel Corp v. Johns-Manville Sales Corp., 626 F.2d 280, 291 (3rd Cir.1980), the seller stated in promotional materials that it could “cite many asbestos roofs that, today, are still performing satisfactorily after more than forty (40) years of exposure.” The Third Circuit held that this language did not create an explicit warranty of future performance for the roof installed for the buyer. Other courts have held that similar statements are not warranties of future performance. Tolen v. A.H. Robins, Co., 570 F.Supp. 1146 (N.D.Ind.1983) (statement made that some women have been effectively protected by the same IUD for five years or longer); South Burlington School Dist. v. Calcagni-Frazier-Zajchowski Architects, Inc., 138 Vt. 33, 410 A.2d 1359 (1980) (statement made that roof would do as good a job as other material with a built-up roof of twenty years). As discussed in Part V(b) of this Memorandum and Order, it cannot be determined on the record presently before the Court whether as a matter of law the contracts between the railroads and Lone Star included express warranties of future performance. It will be for the jury to determine whether under each contract a basis for the bargain included an express warranty. Although it is not necessary that the formal terms “warrant” or “guarantee” be used, the authorities cited herein require that under § 2-725 the claimed warranty must explicitly indicate that Lone Star was warranting the future performance of ties for a specific period of time. On the record here, the Court cannot determine as a matter of law that Lone Star did not explicitly warrant the future performance of its concrete railroad ties. The question whether the warranty explicitly extended to the future is a mixed question of fact and lav/ requiring an ultimate determination by the trier of fact. Pack & Process, Inc. v. Celotex Corp., 503 A.2d 646, 652 (Del.Super.Ct.1985). Here, ambiguity exists as to the seller’s intention, and parol evidence is necessary before the issue can be finally determined. If express warranties existed which extended to future performance, plaintiffs’ claims would not be barred by the four year limitations period of § 2-725. Accordingly, Lone Star is not entitled to partial summary judgment as to plaintiffs’ claims for breach of contract and for breach of express warranties. Lone Star is, however, entitled to partial summary judgment as to the claims of breach of implied warranties asserted by Metro-North and CSX. It is well established that an implied warranty cannot extend to future performance of the goods. Rockstroh v. A.H. Robins Co., Inc., 602 F.Supp. 1259, 1268-1269 (D.Md.1985); Clark v. De Laval Separator Corp., 639 F.2d 1320, 1325 (5th Cir.1981); Stumler v. Ferry-Morse Seed Co., 644 F.2d 667, 669 (7th Cir.1981); Standard Alliance Industries, Inc. v. Black Clawson Co., 587 F.2d 813 (6th Cir.1978); Holdridge v. Heyer-Schulte Corp., 440 F.Supp. 1088 (N.D.N.Y.1977). As stated by one Court: Section 2-725(2) denies applicability of the discovery doctrine to all implied warranty actions. Such unwritten guarantees by definition can never “explicitly” encompass future performance. (Emphasis in original). LaPorte v. R.D. Werner Co., Inc., 561 F.Supp. 189, 191 (N.D.Ill.1983). Plaintiff’s reliance on Cucchi v. Rollins, 574 A.2d 565 (Pa.1990) is misplaced. That case involved the lease of the product at issue rather than as here the sale of the goods allegedly warranted. The nature of a lease requires that the implied warranty extended by the agreement will continue throughout the life of the lease. As noted hereinabove, there is overwhelming authority that when the sale of goods is involved, implied warranties cannot extend to future performance of the goods. Applying this well-accepted principle to the facts of record here, this Court concludes that defendant Lone Star is entitled, with one exception, to the entry of partial summary judgment in its favor as to all claims asserted against it alleging a breach of implied warranties of merchantability and a breach of implied warranties of fitness for the particular purpose with respect to all ties delivered more than four years before suit was filed by Metro-North and CSX. Because all CSX ties were delivered more than four years prior to the filing of suit by CSX, its claims for breach of these implied warranties are time-barred in toto. Metro-North may pursue in this litigation its claims for breach of implied warranties only with respect to the 1,000 ties purchased in August of 1986. Other such claims of Metro-North are time-barred. (b) The Tort Claims Contending that a recovery for economic loss alone may not be had in tort, Lone Star also seeks partial summary judgment as to the claims of negligence and strict liability asserted by the railroads. Citing East River S.S. Corp. v. Trans-america Delaval, Inc., 476 U.S. 858, 106 S.Ct. 2295, 90 L.Ed.2d 865 (1986), Lone Star argues that under the so-called “economic loss doctrine” the remedies of each railroad lie in an action of contract alone and not in one of tort. This Court would agree. In East River, the Supreme Court, applying admiralty law, held that no products liability claim, whether based on a theory of negligence or on one of strict liability, can be asserted by a plaintiff when the injury claimed is economic loss alone. 476 U.S. at 876, 106 S.Ct. at 2304. In so holding, the Court rejected lower court decisions which had held that an action may be brought in tort for economic loss alone when the tortious act created an unreasonable risk of harm or a dangerous condition or arose from a sudden calamitous event. See e.g. Pennsylvania Glass Sand Corp. v. Caterpillar Tractor Co., 652 F.2d 1165 (3rd Cir.1981). The Court, in indicating in East River that resolution of the degree of risk in such a case is too indeterminate to enable manufacturers to structure their business behavior, said the following: [Sjince by definition no person or other property is damaged, the resulting loss is purely economic. Even when the harm to the product itself occurs through an abrupt, accident-like event, the resulting loss due to repair costs, decreased value, and lost profits is essentially the failure of the purchaser to receive the benefit of its bargain — traditionally the core concern of contract law. 476 U.S. at 870, 106 S.Ct. at 2301-02 (citations omitted). The Court noted, however, that recovery may be had for economic loss if a defective product damages property other than the product itself. Id. at 867, 106 S.Ct. at 2300. The parties here differ as to the state law to be applied to this issue. However, that question need not be decided. The law of each jurisdiction in which Amtrak ties are located would deny recovery. Amtrak ties are laid in Massachusetts, Maryland, Delaware, Pennsylvania and New Jersey. The Supreme Judicial Court of Massachusetts has held that “when economic loss is the only damage claimed, recovery is not allowed in tort-based strict liability or in negligence.” Bay State-Spray & Provincetown Steamship, Inc. v. Caterpillar Tractor Co., 404 Mass. 103, 533 N.E.2d 1350, 1353 (1989). In so holding, the Court relied upon the decision in East River, noting that the opinion “sets forth strong reasons for recognizing a meaningful distinction between tort recovery for physical injuries and warranty recovery for economic loss.” Id. 533 N.E.2d at 1354. Courts in Pennsylvania have also denied recovery in tort where the only damage alleged is to the product itself, whether or not the defect posed a risk of other damage or injury or manifested itself in a sudden event. REM Coal Company v. Clark Equipment Co., 386 Pa.Super. 401, 563 A.2d 128, 132 (Pa.1989). In so holding, the Court adopted the East River view that the public safety exception was too indeterminate a standard to be applied. Id. 563 A.2d at 132. Similarly, the Supreme Court of Delaware has held that “with privity of contract present, a claim does not arise in negligence.” Council of Unit Owners of Sea Colony East v. Carl M. Freeman Assoc., Inc., 1990 WL 177632, 1990 Del.Super. LEXIS 412 (1990). In Council of Unit Owners, the Court cited with approval the ruling in East River that a tort claim should not be allowed to proceed according to the indeterminate “degree of risk" standard. (Slip. op. at 6). Although New Jersey courts have not commented on the East River opinion, it has been held in New Jersey that “a commercial buyer seeking damages for economic loss resulting from the purchase of defective goods may recover ... for breach of warranty under the U.C.C., but not in strict liability or negligence.” Spring Motors Distributors, Inc. v. Ford Motor Co., 98 N.J. 555, 489 A.2d 660, 663 (1985). Nor is recovery in strict liability available under the substantive law of Maryland. In Council of Co-Owners Atlantis Condominium, Inc. v. Whiting-Turner Contracting Co., 308 Md. 18, 35, 517 A.2d 336 (1986), the Maryland Court of Appeals, although holding that a tort duty may be imposed for mere economic loss where a risk of death or personal injury exists, stated that conditions that present merely a risk to general health, welfare, or comfort but fall short of presenting a clear danger of death or personal injury will not suffice. Id. at 35, n. 5, 517 A.2d 336. In opposing the entry of summary judgment in favor of Lone Star as to its tort claims, Amtrak has not presented evidence indicating that the deteriorating ties at issue presently constitute a clear danger of death or personal injury. By Amtrak’s own rating system, only 6.8% of the ties were in July of 1990 rated Grade 3 or worse and may have lost some of their load carrying capacity. Amtrak replaced ties on a “spot” replacement system for more than a year before contemplating a removal of all ties. The process of replacing the ties began in the summer of 1990, almost two years after the cracking was first detected, and will not end until late 1991 or early 1992. Although ties are deteriorating and must be replaced, this Court finds as a matter of law on this record that they have not to date created a risk of death or personal injury. Accordingly, this Court has concluded from its review of the pertinent authorities, that none of the jurisdictions in which Amtrak concrete cross ties have been laid would permit Amtrak to pursue its claims based on negligence or strict liability. Similarly, the tort claims of the MBTA and CSX are also barred by the applicable law. As noted, Massachusetts law denies recovery in tort for economic loss. Likewise, the Supreme Court of Virginia, in answering questions certified to it by the United States Court of Appeals for the Fourth Circuit said the following: Tort law is not designed, however, to compensate parties for losses suffered as a result of a breach of duties assumed only by agreement. That type of compensation necessitates an analysis of the damages which were within the contemplation of the parties when framing their agreement. It remains the particular province of the law of contracts. Sensenbrenner v. Rust, Orling & Neale, 236 Va. 419, 374 S.E.2d 55, 58 (1988). The Supreme Court of Appeals of West Virginia has held that recovery for economic loss may be had in tort only when the damage is attributable to a sudden calamitous event. Anderson v. Chrysler Corp., 403 S.E.2d 189 (W.Va.1991), citing Star Furniture Co. v. Pulaski Furniture Co., 171 W.Va. 79, 297 S.E.2d 854 (1982). The West Virginia Court held that “in order to recover under Star Furniture, the damage to the product must result from a sudden calamitous event attributable to the dangerous defect or design of the product itself.” 403 S.E.2d at 191, citing Capitol Fuels, Inc. v. Clark Equipment Co., 382 S.E.2d 311 (W.Va.1989). Thus, under the law of Virginia, West Virginia, Maryland, Delaware, Pennsylvania, New Jersey, and Massachusetts, the tort claims asserted in this case by Amtrak, CSX, and the MBTA are barred. In addition, Metro-North’s tort claims are barred under New York law. In Schiavone Construction Co. v. Elgood Mayo Corp., 81 A.D.2d 221, 232, 439 N.Y.S.2d 933, 939 (1st Dep’t.1981) (Silverman, J., dissenting), dissent adopted on appeal, 56 N.Y.2d 667, 451 N.Y.S.2d 720, 436 N.E.2d 1322 (1982), Judge Silverman stated: the rationale behind strict liability in personal injury situations is not well-suited to claims alleging only economic loss. Economic loss results from the failure of the product to perform to the level expected by the buyer and the seller. This reasoning was expressly adopted by the New York Court of Appeals, which reversed the majority opinion in Schiavone and adopted the dissent of Judge Silver-man. 451 N.Y.S.2d at 720-21, 436 N.E.2d at 1323. See also County of Suffolk v. Long Island Lighting Co., 728 F.2d 52, 62 (2nd Cir.1984); Long Island Lighting Co. (LILCO) v. Transamerica Delaval, 646 F.Supp. 1442, 1457 (S.D.N.Y.1986). In sum, it is apparent from the record in this case that the danger of failure of the railroad ties to the extent that such failure would cause a derailment or other calamitous event is merely speculative at best and is not the type of circumstance which would support the assertion of a tort claim by any of the railroads. The claims of all the railroads in this case arise under the contracts between the parties and are based on the failure of the product to perform as expected. Any recovery by the railroads in these actions will therefore be in contract, not in tort. For all these reasons, defendant Lone Star is entitled to partial summary judgment as to the claims of all plaintiffs based on theories of negligence or strict liability. Y The Motions of the Railroads Amtrak has moved for partial summary judgment seeking a ruling as a matter of law that it properly revoked acceptance of the ties pursuant to the contract and the applicable provisions of the U.C.C. In addition, Amtrak, the MBTA, and Metro-North have all moved for partial summary judgment on their claims of breach of express warranties. Metro-North and CSX have also moved for partial summary judgment on their claims of breach of implied warranties of merchantability and implied warranties of fitness for the particular purpose. Initially, it should be noted that the parties do not dispute that the concrete ties have failed to perform as intended. The service life of the ties has been substantially reduced, they are not of uniform quality, and they require higher rather than lower maintenance. However, whether performance of the ties was expressly or impliedly warranted and the cause of the ties’ defects are matters of sharp dispute in this litigation. (a) Revocation of Acceptance Amtrak claims that it is entitled to partial summary judgment irrespective of any warranty considerations because Amtrak properly revoked acceptance of the ties under the provisions of the 1983 contract and the U.C.C. Relying on Clause 5(d) of the General Provisions which provides that acceptance of the ties shall be conclusive except as regards latent defects, fraud, or such gross mistakes as amount to fraud, Amtrak contends that the ties contain “latent defects” and that revocation of acceptance was properly accomplished by it pursuant to the terms of the contract. Lone Star contends that Amtrak has not established as a matter of law that the ties were “latently” defective and that the defect could not have been discovered upon inspection. This Court would agree. The determination of latency is essentially a factual one. United States v. Lembke Cons