Overview
In an opinion dated Monday, Judge Torres ruled, after a bench trial, that a shipping company was not liable for the damage caused by Hurricane Sandy to 211 shipping containers that were sitting in the New York Container Terminal and that were filled with Lord & Taylor sweaters and cardigans. The controlling question was whether the storm was an “Act of God,” which, at least legally speaking, turns on whether the scope of the storm was foreseeable enough for the defendant to have prevented the damage. Judge Torres answered the question “no,” because accurate predictions about the size of the storm surge did not materialize until it was too late:
Because Sandy was unusually destructive and because the relevant forecasts predicting this destruction did not arrive until late in the weekend when nothing more could have been done, neither NYCT nor Zim [the shipping company] was negligent in its attempts to prepare for Sandy. In its nearly 50- year history, NYCT had never experienced flooding from storm surge breaching the bulkhead . . . . Unlike many of the cases cited by Plaintiff, NYCT had no frame of reference for Hurricane Sandy . . . . Although Sandy was expected to be severe, the parameters of the worst case scenario did not begin to crystallize until Saturday morning, and, even then, the worst case did not predict the inundation of the Terminal. NYCT lacked specific estimates about the possible height of Sandy's storm surge until Saturday morning at 11 :00 a.m., when the first NWS storm surge estimate indicated a range of 4 to 8 feet. If forecasts and advisories are intended to have any bearing on hurricane preparedness, then NYCT's worst case scenario involved an 8-foot storm surge, meaning minimal flooding over the bulkhead and some flooding around the northeast portion of the Terminal near Bridge Creek. The mere possibility of a hurricane cannot, by itself, warrant preparations on the massive scale proposed by Plaintiff. As discussed above, it was not until 2:00 a.m. on Sunday, October 28 that a 5 to 10-foot storm surge -- one capable of breaching the bulkhead -- was first forecast. Thus, approximately 12 hours before the Terminal and the Port of New York would close, the worst case scenario for Sandy's storm surge was adjusted to a range that exceeded the height of the Terminal's bulkhead. Given the time between the adjusted forecast and when preparations had to be completed due to safety concerns, NYCT had no reasonable or practical way to move or protect over 2,200 containers located on the Terminal in the hours before landfall.
