Lord & Taylor LLC v. Zim Integrated Shipping Services, Ltd. (108 F. Supp. 3d 197, 2015)

OPINION AND JUDGMENT

ANALISA TORRES, District Judge:

1. Overview

On the evening of Monday, October 29, 2012, Hurricane Sandy made landfall in southern New Jersey, causing billions of dollars in damage along the East Coast of the United States. As a result of flooding at the New York Container Terminal (“NYCT” or the “Terminal”) located on Staten Island, 211 cartons containing Plaintiff, Lord & Taylor LLC’s, ladies cardigans and sweaters were ruined by wetting damage. Although Hurricane Sandy was figuratively an Act of God, the question before the Court is whether Hurricane Sandy was legally an Act of God that absolves Defendant, Zim Integrated Shipping Services, Ltd. (“Zim”), of liability for Plaintiffs loss. The answer is yes.

II.Procedural History

The Court held a bench trial from October 27 to 31, 2014. Post-trial memoranda were fully submitted on December 5, 2014. On January 8; 2015, the Court visited NYCT.

At trial, each party presented one fact witness and two expert witnesses. Robert Nixon, Vice President of Operations at NYCT, testified as a fact witness on behalf of Plaintiff, and Zim called Salvatore Gril-lo, a former NYCT employee who was present at NYCT on the night of the storm. The Court credits their testimony.

Each party presented its own terminal operations expert. Captain Ivo Knobloch testified on behalf of Plaintiff. Knobloch holds a Bachelor of Technology degree in Ship Management and Ship Operation from the Academy for Nautical Science and Marine Technology in Bremen, Germany. Ex. 57, at I. He has been a marine surveyor and casualty investigator since 1988, and prior to that, worked on ships for about 14 years. ■ Id.; Tr. 239. Zim called Donald Hamm as its terminal'operations expert. Hamm worked at container terminals in Europe and the United States for 40 years before retiring in 2009. Tr. 522; see also Ex. 62. Most recently, from 2003 to 2009, Hamm was president of the Port of Newark Container Terminal. Tr. 524.

Each party also presented a meteorology expert. Lee Branscome, Ph.D., testified for Plaintiff. Branscome earned a Ph.D. in meteorology at the Massachusetts Institute of Technology. Ex. 33, at 1. He is a Certified Consulting Meteorologist and is board certified by the American Meteorological Society. Id. Zim called Austin Dooley, Ph.D. Dooley holds a Ph.D. in Physical Oceanography from New York University. Ex. 35, at 22. Dooley was previously an associate professor of meteorology and oceanography at the SUNY Maritime College, an adjunct instructor of meteorology and oceanography at Purchase College, and an adjunct professor of meteorology at the U.S.- Merchant Marine Academy. Id. at 1. In addition to the live testimony, the parties provided deposition excerpts constituting the direct testimony of several additional fact witnesses. See Joint Pre-Trial Order, Oct. 20, 2014, EOF No. 60.

“In an action tried on the facts without a jury ... the court must find the facts specially and state its conclusions of law separately.” Fed.R.Civ.P. 52(a)(1). Following are the Court’s findings of fact and conclusions of law.

III. Findings of Fact

A. Stipulated Facts

Prior to trial, the parties stipulated to the following facts concerning Plaintiffs cargo, the manner of shipment, and the applicable damages.

Plaintiff contracted with Zim, a licensed ocean liner carrier, to transport Plaintiffs merchandise from Hong Kong to New York. Joint Stipulation of Facts (“Jt. Stip.”) ¶¶ 1-3, 22, Oct. 20, 2014, ECF No. 60. Zim leased space aboard a ship known as the M/V. OOCL Kobe (the “Kobe”) to transport the goods in containers. Id.

On October 1, 2012, two containers, container GLDU 2916462 (“Container G”), carrying 268 cartons of Plaintiffs ladies cardigans, and container IPXU 3827688 (“Container I”), carrying 443 cartons of Plaintiffs sweaters and cardigans, were loaded onto the Kobe. Id. ¶ 1, 2. The Kobe departed Hong Kong for the Port of New York oh October 1 and arrived in New York on Saturday, October 27. Id. ¶¶ 1-2, 4. The Kobe berthed at NYCT at approximately 9:00 a.m. and began cargo operations at approximately 1:00 p.m. Id. ¶ 4. The term “cargo operations” means the loading and unloading of cargo containers. The Kobe completed cargo operations at 2:12 a.m. on Sunday, October 28 and left shortly thereafter. Id. 5. Container G was stored outdoors on the asphalt surface of the Terminal; NYCT was unable to determine where Container I was stored. Id. ¶¶ 6-7.

As is “usual and customary” on the weekend, NYCT was closed for truck pickup of incoming cargo.- Id. ¶ 8. At no time did Plaintiff request that Zim or NYCT provide Plaintiff the opportunity to collect its goods on Saturday or Sunday. Id. ¶ 9.

Due to Hurricane Sandy, NYCT was closed on Monday, October 29. Id. ¶ 10. NYCT “suffered flooding damage on the evening of Monday, October 29, 2012 as a result of the storm surge associated with Hurricane Sandy.” Id. ¶ 11.

Plaintiffs truckers picked up the containers on November 6 and delivered them to Plaintiff the next day. Id. ¶ 12. As a result of Sandy, 118 cartons in Container G and 93 cartons in Container I suffered wetting damage and were destroyed. Id. ¶¶ 16-17. Based on the retail sales value of the merchandise, Plaintiff suffered a loss of $206,972. Id. ¶ 18. This amount was paid to Plaintiff by its cargo underwriter, Markel Syndicate 3000, which is subrogated to Plaintiffs rights to the claim under the cargo policy. Id.

Pursuant to the package limitation provision of the Carriage of Goods by Sea Act (“COGSA”), 46 U.S.C. § 30701 note, formerly at 46 U.S.C. app. §§ 1301 et seq., the parties agree that Plaintiffs damages are limited to $105,500 and that this amount is directly attributable to wetting damage from Hurricane Sandy. Id. ¶¶ 19-20.

B. The Terminal

NYCT is one of six container terminals located in the Port of New York. NYCT is situated on the northwest corner of Staten Island. The Terminal sits on land owned by the City of New York (the “City”), which leases it to the Port Authority of New York and New Jersey (the “Port Authority”), which, in turn, leases it to NYCT. Tr. 141, 527-28. This is a common arrangement among terminal operators and local governments in the area. Tr. 529. Constructed in the 1960s, NYCT was previously known as the Howland Hook Container Terminal. Ex. 62, at 2. The Ontario Teachers Investment Group purchased the Terminal in 2006, and it was subsequently renamed. Id.

The Terminal is an asphalt-covered lot spanning 187 acres. Tr. 456, 491. It is roughly triangular in shape. Tr. 39; see also Ex. 62A (aerial photo of NYCT with relevant structures labeled); Ex. 78 (aerial photo of NYCT described during Nixon’s testimony). NYCT is bordered along the north by a swamp, Tr. 508, and along the south by railroad tracks that do not belong to the Terminal, Tr. 454. A tidal estuary known as Bridge Creek runs along the north edge and cuts southeast through the Terminal. Tr. 42, 347-48. Located in the northeast area of NYCT is an intermodal rail facility where containers are loaded onto rail cars. Tr. 138. The Terminal is bordered on the east by the Arlington Yard, a rail yard that is owned by the City, managed by Conrail, and connected to NYCT’s intermodal rail facility. Tr. 43, 105.

NYCT is bordered on the west by the Arthur Kill, a tidal river. Tr. 89; Exs. 17, 38. The Arthur Kill is a navigable waterway that runs along the west side of Staten Island and separates Staten Island and New Jersey. Ex. 38. At its southern end, the Arthur Kill connects to Raritan Bay. Id. The Arthur Kill is considered part of New York Harbor, which also includes the Upper Bay and Lower Bay of New York at the convergence of the Hudson and East Rivers. Tr. 740. Bridge Creek connects to the Arthur Kill at the northwest edge of the Terminal. Tr. 33-34. NYCT has an estimated 3,000-foot bulkhead that runs along the Arthur Kill. Tr. 29, 38-39. The bulkhead, which is the front wall of the Terminal that faces the water, is roughly the same height above the water as the bulkheads of other terminals in the Port of New York because these bulkheads were built in accordance with standards established by the Port Authority and the U.S. Coast Guard. Tr. 543-44.

C. Terminal Operations

NYCT is engaged in the business of stevedoring, which involves transporting cargo onto and off of seafaring vessels. Tr. 577. Cargo is stored in corrugated steel containers that come in standard sizes of 20 or 40 feet long and 8 to- 9.6 feet tall. Tr. 222, 535, 546. Containers sit on corner castings, which are standard-sized pieces of steel welded to the corners of a container. Tr. 535-36. The weight of a container rests on these corner castings, and they are used to attach and secure one container to another on a vessel or to lift a container out of a vessel. Tr. 536-37, 541-42; see also Ex. 96 (diagram of corner castings). Because the corner castings must be aligned in order to attach and provide stability, containers can only be stacked on other same-sized containers, ■e.g., 40-foot containers can only be stacked on other 40-foot containers. Tr. 538.

Containers transported by sea are loaded and stacked in specialized container ships and are unloaded at a container terminal using large, custom cranes. See Ex. 99 (video showing unloading of container from a container ship). The ■ cranes are anchored to a string piece, which is a strip of asphalt under the cranes along the bulkhead. Tr. 543^44; see also Ex. 88. NYCT has a total of 3 berths and 9 cranes distributed among the berths for cargo loading and unloading. Tr. 29-30. A crane operator sits within the crane approximately 140 feet above the string piece. Tr. 542. To load or unload a container, the crane operator steers a spreader bar over the container that she intends to move and lands the bar onto the container. Tr. 542. The spreader bar has a twist lock that hooks into each of the container’s corner castings, and the crane operator lifts the container onto or off of the ship. Tr. 542; see also Ex. 99.

After lifting a container off of a vessel, the crane operator then lowers the container onto a trailer-type wheeled cart known as. a bomb cart, which is then used to transport the container to another location in the terminal for storage. Tr. 195, 547; Ex. 85 (photograph of a yellow bomb cart). A bomb cart has raised sides and corners to hold a container, but it does not have brakes or signal lights and can only be used within a terminal. Tr. 195. Outside of a terminal, containers are typically transported on road chassis. A road chassis is similar to a bomb cart, but it has brakes and signal lights and is permitted on public roads. Tr. 197-98, 533-34; Ex. 87 (photograph of a road chassis); see also Ex. 84 (photograph of a blue road chassis and a yellow bomb cart). Containers must be secured by their corner castings when attached to a road chassis, as a road chassis does not have the raised sides of a bomb cart. Tr. 202, 547. Bomb carts are more commonly used during cargo discharge operations because crane operators can simply drop a container onto a bomb cart without needing to align the corner castings. Tr. 547. It is possible to discharge a container directly onto a road chassis, but this practice is not typically employed today. Tr. 547-48. Refrigerated containers and containers holding hazardous materials are always stored on a road chassis. Tr. 50-51..

The Port of New York utilizes the service of members of the International Longshoremen’s Association (“ILA”). Tr. 578. In accordance with the ILA’s labor agreement with the Terminal, a request for voluntary labor to assist on the weekend must be ordered by Friday at noon. Tr. 578. A terminal is permitted to request voluntary labor on an emergency basis under certain circumstances, but the ILA needs to approve the request, and the decision to work is left to the discretion of the employee. Tr. 578.

D. Weather Advisories

Official weather reports for Hurricane Sandy were issued by the National Weather Service (“NWS”) and its hurricane-focused division, the National Hurricane Center (“NHC”). Tr. 267. The NWS is operated by the National Oceanic and Atmospheric Administration (“NOAA”), an agency located within the Department of Commerce. Tr. 267. The NWS and the NHC provide both text-based and graphic-based tropical storm and hurricane forecast products to the public, including tropical cyclone forecasts and advisories, 5-day graphical tropical weather outlooks, and tropical cyclone wind field graphics. See Ex. 71 (Department of Commerce document titled, “National Hurricane Center Product Description Document: A User’s Guide to Hurricane Products”). In addition to providing national weather products, the NWS also provides New York area-specific products from its New York office located in Upton, New York. Tr. 700.

A storm surge is “ ‘[a]n abnormal rise in sea level accompanying a hurricane or other intense storm, and whose height is the difference between the observed level of the sea surface and the level that would have occurred in the absence of the cyclone.’” Ex. 46, at 13 (quoting NHC’s Glossary of NHC terms); see also Tr. 807. The magnitude of a storm surge depends, in part, on the “fetch,” which is the amount of water over which a storm’s winds blow, building up the storm surge. Tr. 433. If a storm’s winds blow over a larger area of water, the storm surge will be greater. Tr. 433.

The severity of a storm surge also depends on the height of the tides when a storm arrives. Due to tidal cycles, there are several measures of the sea level depending on the location and time of day. A measure of the sea level at a particular geographic location is known as a tidal datum, and tidal data is measured by a tide gage. See Tr. 706, 843; Exs. 26, 37 (examples of tidal data at Bergen Point West Reach, New York). A tide gage is typically a tube affixed to a structure in the water that contains electronic instruments to measure sea level. Tr. 685. New York has two tide cycles within á single day, meaning two high tides and two low tides. Tr. 685. However, the levels of the high and low tides are not identical. The highest high tide level that the water reaches in a year is referred to as mean higher high water (“MHHW”). Tr. 391, 695; see also Ex. 35F (Dooley’s hand-drawn exhibit of tidal data in the New York area). The lowest low tide level in a year is referred to as mean lower low water (“MLLW”). MLLW is often used as a benchmark for other tide levels and is typically indicated by zero. Tr. 391-92. In New York, the difference between MLLW and MHHW is approximately 5.5 to 5.6 feet. Tr. 686. NOAA also provides averages of the high and low tides for a particular tide gage. The average of the high tides is called mean high water (“MHW”), and the average of the low tides is called mean low water (“MLW”). Tr. 685-86, 693. At trial, most tide references were based on measurements taken at the Bergen Point West Reach tide gage, which is the tide gage closest to NYCT. See Tr. 331; Ex. 95.

Storm tide refers to the combined height of the predicted normal tide and the storm surge. Tr. 392-93. For example, Hurricane Sandy arrived when the normal tide was 5.2 feet above MLLW and had a storm surge of 9.3 feet; thus, the storm tide was 14.5 feet. Ex. 41 (NOAA Tides and Currents Graph for Bergen Point West Reach from October 26, 2012 through October 30, 2012); see also Ex. 44, at 8 n. 9 (NHC report describing storm surge as “the abnormal rise of water generated by a storm ... expressed in terms of height above normal tide levels”; storm tide as “the water level due to the combination of storm surge and the astronomical tide ... expressed in terms of height above a vertical datum”; and inundation as “the total water level that occurs on normally dry ground as a result of the storm tide ... expressed in terms of height above ground level”).

Generally, 48 hours prior to landfall, the NWS and the NHC forecasts provide specific estimates of the possible storm surge for a storm. Tr. 360-61. The weather agencies use a computer model called SLOSH, which stands for “Sea, Lake, Overland Surges from Hurricanes,” to simulate the potential storm surge based on the size of the storm, the predicted track, the winds, and other variables. Tr. 283, 360-62.

E. Relevant Weather Forecasts and NYCT Preparation Prior to Hurricane Sandy

1. Monday, October 22 through Wednesday, October 24, 2012

NYCT became aware of Hurricane Sandy’s potential impact on the New York area one week before landfall. Tr. 43-44. Robert Nixon and Joseph Cordero, employees of NYCT, described the Terminal’s preparations in anticipation of the storm. Nixon became the Vice President of Oper•ations at NYCT in September 2012 and is responsible for the day-to-day operations involving vessel and gate activity. Tr. 43; Nixon Dep. 7:22-8:9. Cordero, an employee of Global Container Terminals, Inc., has worked at NYCT as Director of Marine Operations since ■ 2006 and was also involved in preparations for Hurricane Sandy. Cordero Dep. 7:10-8:14. Cordero’s responsibilities included overseeing marine superintendents and planners, ordering labor to work vessels, and acting as a liaison between customers, steamship lines, and the Terminal. Cordero Dep. 9:2-11.

During the week leading up to Sandy, Nixon, who was responsible for container storage, obtained weather information from reports prepared by a private weather service called WeatherWorks. Tr. 44; Nixon Dep. 8:24-9:19. A WeatherWorks Weather Statement issued at 4:11 p.m. on Tuesday, October 23, reported “significant storm potential early next week.” Ex. 7, at 2. The statement noted that “two scenarios exist for the storm into Monday and Tuesday: one tracks Sandy too far east and out to sea, leaving the Northeast with only rain showers as a cold front passes through. The second scenario involves the trough wrapping Sandy west-northwestward, thus creating a significant impact somewhere between the Delmarva and Cape Cod. The second scenario would bring heavy, flooding rainfall, damaging winds and substantial coastal flooding/beach erosion to the Northeast.” Id. The statement concluded, “while the potential impacts are high, there continues to be much uncertainty in the track and strength of this storm.” Id.

Throughout the week, Nixon and his staff and other Port of New York terminal operators participated in conference calls with the U.S. Coast Guard and the Port Authority. Tr. 45, 87, 97. On these calls, the Coast Guard and the Port Authority informed the terminal operators about the need to prepare for Sandy. Tr. 87, 97. NYCT does not have standard operating procedures for a hurricane, although a document titled “Hurricane SOP” served as a guide in the event of a hurricane. Tr. 49-51; see Ex. 16 (NYCT’s Hurricane SOP). According to Nixon, the “Hurricane SOP” document was not a hurricane preparedness plan but was merely used as reference. Tr. 111.

A Weather Statement issued by Weath-erWorks at 3:12 p.m. on Wednesday, October 24, stated, in part, “today, Sandy has become a hurricane with max winds of 80 mph and will be striking Jamaica this afternoon .... More guidance has been agreeing with Sandy making a turn west-northwestward into a deepening upper trough over the Ohio Valley.... [I]f this scenario plays out, heavy, flooding rainfall, damaging winds capable of bringing down trees and power lines, and major coastal flooding/beach erosion will be likely.... Keep in mind, this is a changeable situation and an eastern track leading most of Sandy out to sea is still plausible.” Ex. 7, at 3.

A NWS Hazardous Weather Outlook issued at 3:40 p.m. on the same day stated, in part, “there is the potential for a major coastal storm with heavy rainfall[,] high winds[,] coastal flooding and beach erosion. This will ultimately, depend on the eventual track and evolution of tropical cyclone Sandy as it interacts with a deepening upper level low pressure system approaching the East Coast. The storm may very well just move out to sea[ ] and have little if any impact on our weather. Again[,] forecast confidence is still low at this point.” Ex. 15, at 1.

2. Thursday, October 25 through Friday, October 26, 2012

On the morning of Thursday, October 25, Nixon convened a meeting at 10:00 a.m. to discuss storm preparedness. Nixon Dep. 16:6-15; Ex. 4 (7:38 a.m. Thursday, October 25 e-mail from Robert Nixon titled, “Hurricane Sandy Prep”). In an email sent at 11:42 a.m., Nixon listed several tasks to be completed as a result of the meeting. Ex. 4(11:42 a.m. Thursday, October 25 e-mail from Robert Nixon titled, “Hurricane Sandy Meeting 10/25/12”). These tasks included updating the “entire” SOP and distributing it to each department head, ordering extra labor for Monday to prepare the Terminal, moving “grounded loads from low areas that could potentially] flood,” “[b]reak[ing] down empty stacks according to SOP,” and “[c]ommunicat[ing] to Customs not to park in back of CES for fear of flooding.” Id.

At his deposition, Cordero, who was responsible for marine operations such as ordering labor to work vessels and communicating with customers and steamship lines, said that the main concerns discussed at the Thursday meeting were “mostly high wind damage as well as water breaching the pier, the front side of the pier, the possibility of that; what we had seen in the past during Hurricane Irene.” Cordero Dep. 28:7-10. When asked if he recalled when the forecasts began to predict a significant storm surge, Cordero stated, “I would say that somewhere in the Sunday [October 28] time frame as the timing of landfall became a little bit more accurate to depict; and seeing it lining up, the event lining up a lot closer to periods of high tide, that became more of a concern for everyone. But it certainly wasn’t something that we could see three days out.” Cordero Dep. 29:8-18. Nixon noted that at the Thursday meeting, he was not worried about potential storm surge. Nixon Dep. 16:19-17:3. NYCT’s main concern was wind. Id. at 25:23-25. With that in mind, Nixon directed that high, single stacks of containers with no adjacent support be broken down and reassembled. Id. at 17:20-18:5. Both empty and laden containers were “block stowed,” meaning placed in a low, square formation to provide stability against the wind. Tr. 57-58, 553; see also Ex. 83 (photograph of block-stowed containers). NYCT also took measures to protect its equipment. For example, wheel boxes (containers on road chassis) located close to the water were moved upland, Nixon Dep. 17:10-19, and pickup trucks were parked near the LCL building on the southeast edge of the Terminal, Tr. 74. NYCT secured the container cranes and placed containers around the cranes to prevent driving winds from rolling them around. Tr. 69-70. Nixon did not recall whether laden or empty containers were used for this purpose. Tr. 69-70. NYCT also placed sand bags around the power substation located in the northeast corner of the Terminal. Tr. 68-69. Refrigerated containers, which are regularly stored on road chassis and placed in a row in the middle of NYCT near a power supply, were not relocated. Tr. 51-52.

According to Nixon, NYCT did not move containers in order to avoid flood damage. Nixon Dep. 18:6-9; Tr. 56. Although Nixon mentioned moving laden containers from low areas that could potentially flood in his 11:42 a.m. e-mail on Thursday, October 25, at trial he did not recall any specifics regarding this option or any further discussions about it. Tr. 67-68.

At 11:00 a.m. on Thursday, the NHC issued a 5-day forecast map that predicted that Hurricane Sandy would make landfall shortly after 8:00 a.m. on Tuesday, Oeto-ber 30 in the middle of New Jersey. Ex. 15, at 3. The cone containing the probable path of the storm’s center extended from North Carolina up through Massachusetts. Id.

A WeatherWorks Weather Statement issued at 2:11 p.m. on Thursday stated, in part, “at this time, out to sea solutions are becoming much less numerous and there is growing concern and confidence that a Northeast landfall is most likely.... During the brunt of the storm, winds may be gusting over 50 mph.... Heavy rain will also fall with the storm with amounts over 5 [inches] possible, creating a substantial flooding threat.... Keep in mind, the wind and rainfall details above are preliminary. As storm confidence grows, expect these impacts to be fine tuned.” Ex. 7, at 4.

A NWS Hazardous Weather Outlook, issued at 3:26 p.m. on Thursday stated, in part, “there is increasing confidence that the tri-state area will feel the impacts of a major coastal storm late this weekend into early next week. This includes the potential for heavy rainfall and resultant significant urban[,] small stream[,] and river flooding[,] high winds causing widespread downing of trees and power lines[,] and significant shoreline impacts from coastal flooding and beach erosion. The specific impacts will ultimately depend on the exact track and evolution of tropical cyclone Sandy as it interacts with a deepening upper level low pressure system approaching the East Coast.” Ex. 15, at 3-4. A NWS Public Information Statement issued at 8:55 p.m. on Thursday stated, in part, “leave low lying or coastal areas[ ] as well as offshore islands. These are the locations most prone to storm surge. Storm surge is the most dangerous part of a storm such as this one. The surge is a dome of water that comes across the coast as the storm makes landfall.” Id. at 4-5.

Cordero stated that on Friday morning, NYCT started to move all nonessential vehicles and equipment upland and began to secure loose items by placing them in warehouses. Cordero Dep. 22:16-23:10. Cordero also said that hazardous containers that could have an environmental impact were given priority for placement upland. Id. at 37:10-15. Nixon testified that hazardous containers were moved up against the LCL building in order to provide stability from the wind. Tr. 50.

Salvatore Grillo was a mechanic and facility foreman at NYCT from 1972 until 2014 and became responsible for facility maintenance at the Terminal in 1973. Tr. 443^44. Grillo testified that he had a routine meeting with his supervisor, Tom Fal-lon, Vice President of Operations, at 12:00 p.m. on Friday, October 26, at which théy discussed hurricane preparations. Tr. 449. As a result, Grillo and his team secured air conditioners on the roof, removed debris from the Terminal, removed garbage drums, and secured portable toilets. Tr. 450-51.

The NHC 5-day forecast map from 11:00 a.m. on Friday indicated landfall in Delaware at about 8:00 a.m. on Tuesday, with the cone of the storm’s probable path extending from North Carolina' through Long Island. Ex. 15, at 7.

A WeatherWorks Storm Alert issued at 2:42 p.m. on Friday, October 26, stated, in part, “a very unique and potentially damaging situation will be monitored the next couple of days as Sandy approaches the area.... While the exact landfall is still uncertain (somewhere between Delaware and southern New England), most likely it is along the Jersey Shore. This would mean we see the brunt of the storm with 4-8 [inches] of rain possible and prolonged wind gusts of 40-60 mph.... Again, the exact track and therefore impacts are somewhat uncertain, but the worst of the storm looks to be Monday into early Tuesday.” Ex. 7, at 5. The storm alert also contained a “Potential Effects for the Area” section, which stated, “[fllooding (rivers/creeks, along with flash flooding) with the potential for 4-8+ inches” and “[c]oastal flooding may be historic in parts of NJ/NY. Therefore, any tidal rivers or bays in the area will be influenced by coastal flooding and increased tides[.] This may extend into areas not typically tidal.” Id. at 6.

At 3:00 p.m. on Friday, the U.S. Coast. Guard declared “Port Condition Whiskey,” meaning that gale force winds were expected within 72 hours. Ex. 22, at ZIM00048-49. The U.S. Coast Guard press release stated, “in anticipation of the arrival of Hurricane Sandy and due to the uncertainty of the hurricane path, the Captain of the Port of New York is taking precautionary measures to ensure maritime communities are prepared in case hurricane conditions affect this area.” ' Id.

A NWS Hazardous Weather Outlook issued at 4:30 p.m. on Friday reiterated that “the tri-state area will likely feel the impacts of a dangerous coastal storm late this weekend into early next week” and “this includes the likelihood for heavy rainfall and resultant significant urban[,] small stream[,] and river flooding ... and significant shoreline impacts from coastal flooding and beach erosion.” Ex. 15, at 8. The outlook also restated the warning from Thursday’s outlook that “the specific impacts will ultimately depend on the exact track and evolution of tropical cyclone Sandy as it interacts with a deepening upper level low pressure system approaching the East Coast.” Id. A NWS Public Information Statement issued at 7:50 p.m. on Friday repeated its warning about low-lying areas and the potential danger from storm surge. Id. at 8-9.

3. Saturday, October 27, 2012

The NHC issued a 5-day forecast map at 5:00 a.m. on Saturday morning that predicted Sandy would make landfall on the southern tip of New Jersey a few hours before 2:00 a.m. on Tuesday. Ex. 15, at 11. This projected landfall time was several hours earlier than was previously indicated in the NHC’s 11:00 a.m. Friday forecast map.

At 5:46 a.m. on Saturday, October 27, the NWS issued its first coastal flood watch for the New York City area. Tr. 379-80; Ex. 15, at 12-13. A coastal flood watch is typically issued when the local NWS office has at least a 50 percent confidence level that a coastal flood will occur within 12 to 48 hours. Tr. 367-68. The coastal flood watch stated, in part, that “the tristate area will likely feel the impacts of a dangerous coastal storm Sunday evening through the middle of next week.... A coastal flood watch is in effect for all coastlines beginning with Sunday evening[’]s high tide[ ] and continuing through Monday. Persistent strong easterly flow will pile water on top of already higher astronomical high tides due to the full moon[,] resulting in possible continuing flood stages between high tide cycles. The most prone for the widespread moderate flooding will be western Long Island Sound shorelines.” Ex. 15, at 13. The Hazardous Weather Outlook issued at the same time was nearly identical to the outlook issued at 4:30 p.m. on Friday.

The Kobe arrived in New York and berthed at NYCT at about 9:00 a.m. on Saturday morning. Jt. Stip. ¶ 4. Cordero averred that diverting or not accepting the containers from the Kobe in order to protect them from Sandy was not considered, and the decision to bring the vessel in to load and unload cargo was made by the Kobe. Cordero Dep. 39:15-25.

At 11:00 a.m. on Saturday, the NHC issued Hurricane Sandy Advisory Number 21, which indicated a possible storm surge height of 4 to 8 feet from Ocean City, Maryland up through Rhode Island. Ex. 15, at 15. The “Discussion and 48-Hour Outlook” section of the advisory stated, in part, “[sjtorm surge[:] the combination of a dangerous storm surge and the tide will cause normally dry areas near the coast to be flooded by rising waters. The water could reach the following depths above ground if the peak surge occurs at the time of high tide.” Id. It specified “4 to 8 ft” for “Long Island Sound[,] Raritan Bay[,] and Delaware Bay.” This was the first weather report for the New York area that provided a definitive range for a possible storm surge. See Ex. 46, at 36 (Department of Commerce Service Assessment : “NHC issued its first public advisory of Sandy with explicit surge forecast on Saturday, October 27, at 11 a.m.”). The advisory also stated, “[s]urge-related flooding depends on the relative timing of the surge and the tidal cycle[] and can vary greatly over short distances. Given the large wind field associated with Sandy[,] elevated water levels could span multiple tide cycles resulting in repeated and extended periods of coastal and bayside flooding. In addition[,] elevated waters could occur far removed from the center of Sandy.” Ex. 15, at 13-15.

At 11:00 a.m. on Saturday, the U.S. Coast Guard declared “Port Condition X-ray,” meaning that gale force winds were expected to make landfall within 48 hours. Ex. 9 (11:25 a.m. Saturday, October 27 email from U.S. Coast Guard to Joseph Cordero). According to an email bulletin sent by a Zim employee who participated in a conference call organized by the U.S. Coast Guard, “all cargo ops [are] to stop at about 1500 hrs tomorrow Sunday 28 Oct. and all deep water vessels over 500 MT are to vacate berths by 1800 hrs LT. The port will be closing down and will reopen after Sandy subsides and moves inland.” Ex. 23, at ZIM000050.

Grillo continued to prepare for the storm on Saturday by removing debris near the chainlink fence that runs along the perimeter of NYCT and securing the gatehouse and booth at the entrance of the Terminal. Tr. 452-53. Grillo checked in with his supervisor, Tom Fallon, but Grillo was not tasked with any additional hurricane readiness duties on Saturday. Tr. 455-56.

The Kobe began to load and unload containers at about 1:00 p.m. on Saturday. Jt. Stip. ¶4. The vessel discharged containers at a rate of approximately 30 containers per hour per crane. Tr. 312; Ex. 28.

A WeatherWorks Storm Alert issued at 1:39 p.m. on Saturday stated, in part, “preparations are [being] made for the very unique and potentially damaging situation expected as Sandy approaches the region.... While the exact landfall is still uncertain (somewhere between Delaware and Long Island), most likely it is along the Jersey Shore.... In addition, the threat of bay and tidal flooding is a good possibility as well. Again, the exact track and therefore impacts are somewhat uncertain, but the worst of the storm looks to be Sunday night into late Monday night.” Ex. 7, at 7. The storm alert also included a “Potential Effects for the Area” section that repeated Friday’s warnings of flooding in rivers and creeks and “historic” coastal flooding in parts of New Jersey and New York. Id. at 8.

The NWS in New York issued a flood watch at 4:58 p.m. on Saturday. Ex. 15, at 16. The flood watch stated, in part, “a dangerous coastal storm is expected to bring between 2 and 6 inches of rain early Monday morning into Tuesday.... These rainfall amounts will cause widespread urban and poor drainage flooding Monday morning into Tuesday.... The urban and poor drainage flooding will likely be exacerbated by fallen leaves clogging drains[ ] and along coastal areas during the times of high tide.” Id,, at 17. At 5:34 p.m. on Saturday, the NWS issued its first coastal flood warning for New York. Tr. 380; Ex. 15, at 17-18. A coastal flood warning is typically issued 12 hours or less in advance of a coastal flood and indicates that coastal flooding is imminent and that preparations should be completed. Tr. 368. The coastal flood warning stated, in part, “a coastal flooding warning means that flooding is expected or occurring. Coastal residents in the warned area should be alert for rising water[ ] and take appropriate action to protect life and property.” Ex. 15, at 19. The coastal flood warning was issued for the coastlines of the Long Island Sound, the southern and eastern shores of Long Island, parts of New York Harbor, and parts of the Hudson and Connecticut rivers. Id. at 18. The warning indicated the “potential for 4 to 8 ft surge Monday night into Tuesday morning” and that “5 to 8 ft waves are possible along exposed eastern and northeastern facing portions of Long Island Sound!,] Peeonic Bay[,] and New York Harbor.” Id. In addition, the coastal flood warning stated, “timing[:] minor coastal flooding is likely with the evening high tides on Sunday!] with likelihood for widespread moderate flooding by the Monday morning high tide cycle. Major coastal flooding!,] possibly to record levels!,] is likely during the Monday night high tide cycles. Moderate to major coastal flooding is possible into the Tuesday morning and early afternoon high tide cycles.” Id.

At 8:00 p.m. on Saturday, the NHC issued Hurricane Sandy Intermediate Advisory Number 22A. Ex. 93, at 140. In the “Discussion and 48-hour Outlook” section, the advisory stated, in part, “a turn toward the north is forecast on Sunday night[,] followed by a turn toward the north-northwest on Monday. On the forecast track the center of Sandy will move parallel to the southeast coast of the United States through the weekend[] and approach the coast of the Mid-Atlantic states late Monday. Maximum sustained winds remain near 75 mph [or] 120 km/h[,] with higher gusts. Little change in strength is forecast during the next couple of days.” Id. at 141. The advisory repeated the 4 to 8-foot storm surge estimate for Long Island Sound, Raritan Bay, and Delaware Bay. Id. At 11:00 p.m., the NHC issued Hurricane Sandy Advisory Number 23, which largely reiterated statements from Intermediate Advisory 22A but added, “while little change in strength is forecast during the next couple of days[,] Sandy is expected to remain a large and powerful cyclone.” Id. at 143-44. Advisory 23 also restated the 4 to 8-foot storm surge estimate for the New York area. Id.

4. Sunday, October 28, 2012

At 2:00 a.m. on Sunday, the NHC issued Hurricane Sandy Intermediate Advisory 23A. Ex. 93, at 147. The advisory repeated the predictions about Sandy’s fore-casted track from the previous evening’s advisories, but the storm surge estimates for Long Island and Raritan Bay were increased to 5 to 10 feet. Ex. 93, at 148.

The Kobe completed cargo discharge at 2:12 a.m. on Sunday. Jt. Stip. ¶ 5. It was the last ship to unload containers before the Terminal closed down. Cordero Dep. 10:20-11:7. When Sandy made landfall, NYCT had 2,231 laden containers in its possession. Tr. 85; Ex. 75 (NYCT Storage Recap). Of those, almost 40 percent had been delivered by the Kobe. Ex. 75; Tr. 85.

At 5:00 a.m. on Sunday, the NHC issued Hurricane Sandy Advisory Number 24, which stated, in part, “Sandy [is] expected to bring strong winds and a significant storm surge to the Mid-Atlantic states and Southern New England.” Ex. 93, at 150. It also restated the previous advisory’s warnings regarding Sandy’s path and storm surge. Id. A NHC 5-day forecast map accompanying Hurricane Sandy Advisory Number 24 predicted landfall in south-central New Jersey around 2:00 a.m. on Tuesday. Ex. 15, at 22.

A WeatherWorks Storm Alert issued at 5:38 a.m. on Sunday stated, in part, “Sandy remains on track to have major impacts on our area Monday.... Tidal flooding is a major concern tomorrow during high tide cycles (7-9 AM and 7-9 PM). The evening high tide may produce significant flooding along inlets and bays with the peak of the storm and high tide coinciding. Rainfall amounts of 2-5 inches, will lead to widespread flooding, but not as severe as what we saw last year with Irene.” Ex. 7, at 9 (emphasis added). The “Potential Effects for the Area” section of the storm alert reiterated a danger of “[flooding (rivers/creeks, along with flash flooding)' with the potential for 2-5+ inches” and that “[c]oastal flooding may be historic in parts of NJ/NY. Therefore, any tidal rivers or bays in the area will be influenced by coastal flooding and increased tides[.] This may extend into areas not typically tidal.” Id. at 10.

At 7:15 a.m. on Sunday, the U.S. Coast Guard declared “Port Condition Yankee,” meaning that gale force winds were expected within 24 hours. Ex. 4 (8:55 a.m. Sunday, October 28 e-mail from John Atkins to NYCT personnel). According to an e-mail bulletin sent by a Zim employee, “all vessels greater than 500 GT must vacate the port by 1800 hrs tonight.... The storm winds are forecast to be 35 to 50 mph with even higher gusts up and down the east coast today from Georgia to as far north as Rhode Island, Connecticut and Massachusetts. The storm surge will be 4 to 8 ft up and down the coast at various time[s] with the 4 high tides and flooding will occur.” Ex. 24, at ZIM000069.

At 8:00 a.m. on Sunday, the NHC issued Corrected Hurricane Sandy Intermediate Advisory 24A. Ex. 93, at 153. The advisory provided an increased storm surge estimate for “Long Island Sound and Raritan Bay including New York Harbor” of 6 to 11 feet. Id. at 154. The advisory stated, “Sandy [is] expected to bring life-threatening storm surge flooding to the Mid-Atlantic coast[,] including Long Island Sound and New York Harbor” and that “the center of Sandy will move parallel to the southeast coast of the United States today and tonight[] and approach the coast of the Mid-Atlantic states by Monday night. Maximum sustained winds are near 75 mph [or] 120 kh/h[,] with higher gusts. Little change in strength is forecast during the next couple of days[,] and Sandy is expected to bring hurricane-force winds to portions of the Mid-Atlantic states.” Id. at 153-54.

At 8:02 a.m. on Sunday, the NWS in New York issued a corrected Coastal Hazard Message stating, “life threatening coastal flooding expected Monday[ — ]threat increasing.” Ex. 15, at 25. The Coastal Hazard Message covered New York Harbor and the Arthur Kill, and it stated potential “tidal departures” of “5 to 10 ft above Monday night into Tuesday morning. The higher end of the range relegated to the most flood prone coastal locations where tidal departures will reach 6 to 11 ft. This includes western Long Island Sound.” Id. at 26.

Later on Sunday morning, Mayor Michael R. Bloomberg issued a mandatory evacuation order for parts of New York City. Ex. 11. According to a press release, Mayor Bloomberg said, “[l]ast night we said this was a serious and dangerous storm. Nothing has changed there. The latest forecasts from [the NWS] are for roughly the path and magnitude of the storm that we talked about yesterday. What they have changed is the magnitude of the storm surge that we are expecting in the coastal areas.” Id. (emphasis added).

At 11:00 a.m. on Sunday, the NHC issued Hurricane Sandy Advisory Number 25, which repeated its 8:00 a.m. warning that “Sandy [is] expected to bring life-threatening storm surge flooding to the Mid-Atlantic coast[,] including Long Island Sound and New York Harbor.” Ex. 93, at 156. The advisory also stated that “the center of Sandy is expected to be near the coast Monday night” and “Sandy is expected to transition into a frontal or wintertime low pressure system prior to landfall. However[,] this transition will not be accompanied by a weakening of the system[,] and in fact a little strengthening is possible during this process.” Id. at 157.

Grillo reported to-work at the Terminal on Sunday morning and continued to clean debris and secure the Terminal. Tr. 456-57. Cordero recalled that the Port of New York closed at about 1:00 p.m. on Sunday. Cordero Dep. 14:14-16. When asked whether NYCT altered its preparations in response to Sunday’s updated forecast calling for a greater storm, Cordero noted that by Sunday morning when the forecast was updated, nonessential personnel had been evacuated because the Port was to be closed by midday Sunday. Id. at 70:4-16. Cordero said that safety was the primary concern: “As conditions deteriorated beyond that point, I don’t believe anything could have been done without potentially putting people in harm’s way, which we absolutely were not going to do. Life and limb first.” Id. at 70:17-21.

A WeatherWorks Storm Alert issued at 2:39 p.m. on Sunday stated, in part, “Sandy is still expected to have a major impact on our area during the day on Monday and extending into early Tuesday.” Ex. 7, at 11. The “Potential Effects for the Area” section of the storm alert stated, in italics, “[sjtorm surge will likely be worse than Irene and has the potential to hit record levels.” The section also reiterated that “[flooding (rivers/creeks, flash flooding, and poor drainage flooding enhanced by leaf clogged storm drains) with the potential for 2-5+ inches” and “[cjoastal flooding may be historic in parts of NJ/NY.” Id. at 12.

As is customary on weekends, NYCT was closed on Saturday and Sunday for truck pickup of incoming cargo, although NYCT remained open for vessel traffic. Jt. Stip. ¶ 8. NYCT remained closed on Monday, October 29, due to the arrival of Hurricane Sandy. Id. ¶ 10.

At 11:00 p.m. on Sunday, the NHC issued Hurricane Sandy Advisory Number 27, which stated, “Sandy [is] about to start its northward turn [and is] expected to bring life-threatening storm surge[,] coastal hurricane winds and heavy Appalachian snows.” Ex. 93, at 168. The advisory also stated, “the center of Sandy will move over the coast of the Mid-Atlantic states late Monday or Monday night,” and repeated its 6 to 11-foot storm surge estimate for New York Harbor. Id. at 169-70.

5. Monday, October 29, 2012

Grillo reported to work on Monday morning with a full crew of 8 to 9 workers. Tr. 459-60. At the regular 12:00 p.m. meeting, it was decided that Grillo and two others would stay late during the hurricane in order to monitor and mitigate any wind damage, such as loose aluminum siding coming off a building or broken windows. Tr. 460-61.

A WeatherWorks Storm Alert issued at 1:17 p.m. on Monday, October 29 stated, in part, “Sandy is currently a strong Category 1 hurricane, with maximum sustained winds of 90 mph----Areas with tidal influence from bays/rivers will see extreme coastal.flooding, possibly exceeding historic proportions -with this evening’s high tide cycle.” Ex. 7, at 13.

At approximately 7:30 p.m. on Monday, Sandy made landfall near Brigantine, New Jersey, which is northeast of Atlantic City. Ex. 44, at 4. At the Bergen Point West Reach tide gage, the storm tide reached a peak of 14.54 feet. Ex. 41. Thus, Sandy’s storm surge at Bergen Point West Reach was about 9.36 feet. Ex. 41. The surge was likely higher at NYCT, which is located 2 miles away from Bergen Point and deeper into the Arthur Kill. Tr. 690; see also Ex. 95 (map of NYCT relative to Bergen Point West Reach). Much of the northwestern portion of Staten Island was inundated with storm water. Ex. 45 (U.S. Geological Survey, Hurricane Sandy storm tide mapper).

Grillo testified that at about 7:50 p.m. on Monday, he traveled to the northwest corner of NYCT and examined the bulkhead. Tr. 465-66, 501. Grillo stated that he was concerned about the rising waters and impending high tide at the bulkhead, so he decided to drive to the main power substation in the northeast corner of the Terminal to turn off the power. Tr. 465-66, 501. As Grillo drove along the north end of NYCT, a drive that takes 5 to 10 minutes, water began to cover the Terminal and blocked his path. Tr. 467-68. By approximately 8:10 p.m. on Monday, the Terminal was flooded. Tr. 466, 468. Because water had begun to surround the steps of the substation, Grillo called one of his staff to bring a backhoe to extract him. Tr. 466. Grillo planned to climb into the bucket of the backhoe to be lowered into the substation and turn off the power. Tr. 501, 503. But, by the time Grillo’s crew arrived with the backhoe, the substation ■ was already flooded. Tr. 501, 508. Although Grillo did not know from which direction the water covered the Terminal, he was certain that water had breached the bulkhead. Tr. 468. Grillo testified that as he drove from the bulkhead to the substation, he could see the water “chasing” him. Tr. 502. According to Grillo, the drive from the bulkhead to the substation and the subsequent flooding took less than 10 minutes. Tr. 503. Grillo said that he may have seen 20 to 30 containers floating in the Terminal, but he was scared at the time and could not recall. Tr. 464. Gi'illo returned to and remained in the administration building for the duration of the storm. Tr. 490-91. By the following day, most of the flood waters had subsided. Tr. 492.

F. Extent of Damage to Plaintiffs Cargo and the Terminal

A total of 211 cartons of Plaintiffs cardigans and sweaters were ruined. The insured value of the sweaters based on retail value was $206,972, but the COGSA package limitation reduced Plaintiffs amount of damages to $105,500. . Jt. Stip. ¶¶ 18-19. The parties agree that the damage to Plaintiffs cargo was “directly attributable to wetting damage associated with Hurricane Sandy.” Id. ¶ 20.

Testimony from Grillo and Nixon and photographs taken by Grillo during and after Hurricane Sandy indicate that the Terminal suffered significant flood damage as a result of the storm. According to Grillo, the' water reached at least 4 feet high near the power substation, as indicated by the height of the leaves lining the chain-link fence. Tr. 470-71; Exs. 76B, 76C. Nearly all of the transformers in the substation in the northeast corner of the Terminal were damaged by water. Tr. 461. In addition, there was flooding in the area of the intermodal yard. The control booth for the railroad crossing was flooded and ruined by about 50 inches of water. Tr. 489-90.

Nixon stated that near the bulkhead, the rows of empty containers positioned closest to the water were “annihilated” by the storm, and some of these containers were found on the other side of the Arthur Kill. Tr. 149-50. Based on his understanding that road chassis are 42 inches high, Grillo estimated that the flood waters reached approximately 48 inches high between the 200 and 300 sections in the north-central area of the Terminal because he could no longer see the road chassis that had been parked in that area. Tr. 471-74; Ex. 62A (aerial photograph of the Terminal with a circled “x” indicating where Grillo had seen road chassis earlier in the day on Monday, October 29 but could not see them that night during the flooding); Ex. 76A (aerial photograph of Terminal with sections labeled); see also Ex. 76D (photograph of Terminal taken by Grillo from a vehicle during Hurricane Sandy). One photograph taken on the morning after the storm shows a container resting on a concrete divider. Ex. 76N. Grillo testified that the dividers are at least 30 inches high and that as many as 6 or 7 containers wound up in that position. Tr. 496-97. This evidence demonstrates that the flood waters were powerful and destructive— high enough to breach a container on top of a concrete divider nearly 3 feet high. See also Tr. 494-95 (Grillo’s testimony regarding seeing floating containers during the storm); Ex. 76K (photograph taken by Grillo during Hurricane Sandy with an orange floating container in the distance).

In one photograph, approximately 18 to 24 inches of water surrounds the administration building where Grillo worked. See Ex. 76E. Another photograph shows pickup trucks inundated with 24 inches of water and parked outside of that building. Tr. 475-76, 483-84; see also Ex. 76F (photograph of baekhoe partially submerged in water near the administration building); Ex. 62A (aerial photograph of the Terminal with a “B” indicating where the backhoe in Ex. 76F was located). Grillo testified that the water in that area peaked at about 30 inches. Tr. 476. Grillo also stated that his own car, which was parked in front of the administration building, was partially flooded and that he had to replace the brakes. Tr. 505-06. When asked whether he attempted to relocate his car to another dry space in the Terminal, Gril-lo said, “[it] was on a high spot.” Tr. 506.

Grillo also testified that the west half of the Terminal along the bulkhead suffered some of the worst flooding. The morning after Sandy, Grillo saw 5-foot-high watermarks on the 6 refrigerated units located next to the refrigerated warehouse. Tr. 480-82. Containers that were used to prevent wind from picking up Cordero’s office trailer were “all over,” and some had washed over the bulkhead into the Arthur Kill. Tr. 485-86.

Nixon also surveyed the damage to NYCT the day after the storm. He estimated that 4.5 to 5 feet of water flooded the Terminal in certain sections. Nixon Dep. 39:25^40:4. Nixon stated that hundreds of empty containers were damaged, but he was not sure how many laden containers were damaged. Tr. 115-16. He also testified that some non-refrigerated laden containers on chassis fell over. Tr. 56. The administration building where Grillo remained during the evening did not flood, although water surrounded it. Tr. 144. Two NYCT trucks were totaled, and the Terminal invested in repairs for several other trucks. Tr. 144. Cordero’s trailer, which was located in the center-west portion of NYCT along the bulkhead, was dislodged from its concrete foundation and was inundated with 18 to 24 inches of water. Tr. 72, 486-87. In addition, NYCT’s “Hurricane SOP” document was partially destroyed by wetting damage. Tr. 110. Nixon believed that at least 3 feet of water impacted the container cranes, and between 18 and 24 inches of water entered the refrigerated facility or “fruit warehouse” in the southwest corner of the Terminal along the bulkhead. Tr. 73-74. Because of the damage, NYCT did not reopen until Monday, November 5, 2012, a week after the hurricane. Tr. 28.

IV. Conclusions of Law

Prior to trial, the parties stipulated that this case is governed by COGSA, “which applied ex proprio vigore until the cargo was discharged from the vessel on October 27, 2012, and then by contract until delivery to Lord & Taylor on November 6, 2012.” Joint Stip. of Law ¶ 1, Oct. 20, 2014, ECF No. 60; Exs. 18, 19. COGSA governs “all contracts for carriage of goods by sea to or from ports of the United States in foreign trade” and imposes various duties on carriers while providing exceptions from liability in certain instances. 46 U.S.C. § 30701 note.

Under COGSA, a plaintiff seeking recovery for damaged goods must first make a prima facie'case by showing that' the carrier accepted the cargo in good condition but that the plaintiff received the cargo in damaged condition. M. Golodetz Exp. Corp. v. S/S Lake Anja, 751 F.2d 1103, 1109 (2d Cir.1985). Once a prima facie case is established, the burden then shifts to the carrier to show that the cause of the damage was one of the exceptions listed in COGSA. Id. at 1110.

Before trial, in exchange for a stipulation as to the value of the cargo, Zim conceded that “the subject cargos were damaged by water during Hurricane Sandy while on the NYCT ... [and] the burden of proof now shifts to [Zim] to establish that the damage was caused by one of the exceptions set forth in Section 4(2)(a) through (q) of COGSA.” Def. PreTrial Mem. 18; see also Jt. Stip. ¶¶ 11, 20. Zim argues that it is not liable because of three excepted causes in COGSA: (1) Act of God; (2) Perils of the Sea; and (3) Clause Q.

A. The Act of God Defense under COGSA

To prevail on an Act of God defense under COGSA, a carrier must show that “the damage from the natural event could not have been prevented by the exercise of reasonable care by the carrier or bailee.” Mamiye Bros. v. Barber S.S. Lines, Inc., 241 F.Supp. 99, 107 (S.D.N.Y.1965), aff'd, 360 F.2d 774 (2d Cir.1966); see also Gilmore & Black, The Law of Admiralty § 3-33 (2d ed.1975) (“A common carrier is not liable for any accident as to which he can shew that it is due to natural causes directly and exclusively, without human intervention, and that it could not have been prevented by any amount of foresight and pains and care reasonably to be expected from him.”) (citation omitted).

“[H]urricanes ... are considered In law to be an ‘Act of God.’ Even though storms that are usual for waters and the time of year are not ‘Acts of God,’ a hurricane that causes unexpected and unforeseeable devastation with unprecedented wind velocity, tidal rise, and upriver tidal surge, is a classic case of an ‘Act of God.’ ” Skandia Ins. Co. v. Star Shipping AS, 173 F.Supp.2d 1228, 1239-40 (S.D.Ala.2001), aff'd sub nom. Skandia Ins. Co. v. Star Shipping Co., 31 Fed.Appx. 201 (11th Cir.2001). However, the mere existence of a hurricane does not entitle a defendant to rely on the Act of God defense. See Bunge Corp. v. Freeport Marine Repair, Inc., 240 F.3d 919, 926 (11th Cir.2001) (affirming rejection of Act of God defense when district court found that reasonable preparations were available to defendant vessel owner to prevent damage caused by Hurricane Opal).

When evaluating defenses such as Act of God or Perils of the Sea, courts must assess whether weather conditions were foreseeable at the given time and location. Thyssen, Inc. v. S/S Eurounity, 21 F.3d 533, 539 (2d Cir.1994). In addition, an absence of negligence is key, and a defendant must demonstrate that no reasonable precautions were available to prevent the damage at issue. Sidney Blumenthal & Co. v. Atl. Coast Line R. Co., 139 F.2d 288, 291 (2d Cir.1943) (“The carrier answers that the hurricane was an act of God — to which we agree, but to which we answer that an act of God is no excuse, if negligence be shown.”); see also Petition of United States, 425 F.2d 991, 995 (5th Cir.1970) (“The test for determining [if the defendants] were free from fault is whether they took reasonable precautions under the circumstances as known or reasonably to be anticipated.”).

Zim argues that Hurricane Sandy was a storm of such “catastrophic proportions” that it was an Act of God that could not have been reasonably prepared for. Plaintiff argues that Hurricane Sandy was foreseeable and that NYCT did not take reasonable precautions to protect Plaintiffs goods.

B. The Exercise of Reasonable Care ■ During. Hurricane Sandy

In determining whether NYCT could have prevented the damage to Plaintiffs merchandise, the Court must first evaluate: (1) what NYCT knew about Hurricane Sandy prior to the storm making landfall on the evening of Monday, October 29, 2012; (2) the severity of Sandy; and (3) whether NYCT was negligent in its preparations or whether nothing could have been done.

1. When Sandy’s Storm Surge Became Foreseeable

Plaintiff emphasizes the importance of foreseeability in this analysis because the greater the foreseeability of a storm, the greater the availability of reasonable measures to guard against damage. If, for example, Sandy’s 9-foot storm surge were foreseeable at least 4 to 5 days prior to landfall, NYCT could have delayed the arrival of incoming container ships and could have advised cargo owners to pick up their cargo before the storm hit. See, e.g., Tr. 604-07. If, however, the storm surge were not foreseeable until shortly before landfall, fewer reasonable options would have been available because of the shorter timeframe to implement any preparations and the potential danger that NYCT’s crews would have faced.

In most respects, Plaintiffs emphasis on foreseeability is correct. See, e.g., Consol. Aluminum Corp. v. C.F. Bean Corp., 833 F.2d 65, 67 (5th Cir.1987) (“Foreseeability obviously marks the limits placed on a defendant’s duty; the precise meaning of the concept is vital.”); In re Tecomar S.A., 765 F.Supp. 1150, 1175 (S.D.N.Y.1991) (“The test for determining whether a storm constitutes a peril of the sea is whether — in light of all the circumstances — the storm was expectable.”); 8 James W. Bartlett, III et al., Benedict on Admiralty § 5.02[E][5] (Joshua S. Force ed., 7th ed. rev. 2013) (“The test for perils of the sea and acts of God is foreseeability and is determined on a case-by-case basis.” (citing Thyssen, Inc., 21 F.3d 533)). Foreseeability, however, depends on certainty, and certainty is a matter of degree. Hurricanes happen every year and — to an extent — -are clearly foreseeable. But, the regularity of their occurrence does not defeat the Act of God defense. The foreseeability inquiry is not limited solely to whether the path of the storm is consistently well-predicted throughout the forecasts leading up to landfall. Rather, a determination of foreseeability must also account for the other information about the storm that was available to those in its path, incl