The opinion of the court was delivered by: BARD
This is an action in admiralty by a retail shoe store operator against an insurance company for damages to a shipment of shoes from Argentina, which damages were allegedly caused by a risk covered by insurance. On the basis of pleadings and the testimony, I make the following special
1. Libellant is Myer Goldman, the operator of a retail shoe store in Wilmington, Delaware. Libellant has been engaged in this business for over thirty years.
2. In March or April 1946 libellant ordered 636 pairs of women's calfskin and suede shoes from Cormons Company of Buenos Aires, Argentina.
3. These shoes were not manufactured by Cormons, but the manufacturing process and the method of packing the shoes for overseas shipments were continually inspected and revised by Cormons.
4. The shoes were packed by the manufacturer in glassene bags which were enclosed in ordinary white cardboard boxes and thereafter placed in five cases of 1/8 ' plywood, reinforced with wooden cleats, bound with steel bands and lined with waterproof paper.
5. Cormons shipped these five cases of shoes under deck from Buenos Aires to New York, New York on board the S.S. Bessemer Victory under a bill of lading dated August 8, 1946.
6. The shoes arrived in New York City on or about September 15, 1946 and were thereafter transhipped to libellant, arriving at his place of business in Wilmington on December 16, 1946.
7. When delivered to libellant the shoes were covered with a thick, heavy green mold of measurable thickness, and were so damaged as to make them nonsaleable.
8. Respondent is Rhode Island Insurance Company, a Rhode Island corporation engaged in the marine insurance business within the jurisdiction of this Court.
9. Respondent had issued an open policy of insurance numbered OC 2063 and CWR 1364 to Globe Shipping Company, Inc. On August 8, 1946, pursuant to this open policy, Globe issued to libellant certificate number OCC 2197 insuring the above five cases of women's shoes for $ 3,900 from the time the shoes left the warehouse in Buenos Aires until delivered to libellant.
10. Paragraph 14 of the open insurance policy provides: 'Warranted by the assured free from damage or injury from dampness, change of flavor, or decay, or from being spotted, discolored, musty or mouldy, unless caused by actual contact of sea water with the articles damaged, occasioned by sea perils; also warranted free of claim for loss of market or for loss, damage or deterioration arising from delay, whether such delay be caused by a peril insured against or otherwise, unless the risk of delay is expressly assumed in writing hereon.'
11. The risk of delay was not expressly assumed in writing on the open policy or on the certificate issued to libellant.
12. Paragraph 6 of the Marine Extension Clauses, which were attached to the open insurance policy, provides: '6. This insurance shall in no case be deemed to extend to cover loss damage or expense proximately caused by delay ...