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DUNAND v. BOWLING GREEN STORAGE & VAN CO.

January 31, 1991

BAUDOUIN DUNAND, AS ASSIGNEE, PLAINTIFF,
v.
BOWLING GREEN STORAGE & VAN CO., DEFENDANT.



The opinion of the court was delivered by: William C. Conner, District Judge.

OPINION AND ORDER

This is an action to recover for the loss of an antique bureau plat or writing desk of the Louis XVI period which was purportedly made by the well-known French ébéniste, or cabinetmaker, C.C. Saunier (the "Desk"). The parties in this matter entered into a stipulation whereby defendant agreed to pay to plaintiff a sum equal to eighty percent (80%) of the value of the Desk at the time of its loss or destruction, namely September 25, 1985, but not to exceed the amount demanded in plaintiff's complaint, plus interest accrued from that date through the date of this Order, and thereafter until the amount is paid at the judicial rate prevailing in this Court. The stipulation further provides that all other claims asserted herein are dismissed with prejudice.

This Court held a non-jury trial on November 19, 1990 for the sole purpose of determining the value of the Desk on the date of its loss. After considering the evidence presented by both plaintiff and defendant, the Court has determined that the fair market value of the Desk, as of September 25, 1985, was $65,000. This opinion incorporates the Court's findings of fact and conclusions of law pursuant to Fed.R. Civ.P. 52(a).

BACKGROUND

Plaintiff, Baudouin Dunand, purports to be the assignee of Claude Sere, the owner of the Desk. Defendant, Bowling Green Storage & Van Co. ("Bowling Green"), is a common carrier and warehouseman located in Yonkers, New York. The action was begun in New York state court and removed by defendant.

It is undisputed that in September 1985, Bowling Green was retained by Corstjens, an international freight forwarder, to receive the Desk in New York from the vessel "American Envoy," which had sailed from Rotterdam in August 1985. As provided, Bowling Green picked up the Desk at a Staten Island dock for carriage to its warehouse. Sometime later, Bowling Green reported the desk missing.

Numerous searches of Bowling Green's warehouse, conducted from November 1985 through August 1986, failed to locate the Desk. Bowling Green suggests it is likely that the Desk was inadvertently discarded.

DISCUSSION

Defendant argued at the start of trial that the Desk must not be valued at a figure in excess of $10,000. Defendant claimed that plaintiff's customs declaration and insurance statement, both of which represented the estimated value of the Desk to be $10,000, equitably estop plaintiff from introducing evidence at trial to prove the value of the Desk to be greater than $10,000. Defendant asserted that "[i]t was entitled to rely on [the insurance declaration and customs declaration] . . . as recognized indications of value." Defendant's Brief, at 3. Defendant further suggested that had it known that plaintiff had a "secret, higher valuation in mind" it might have used different handling procedures.

Defendant's implication that it relied on these documents for purposes of determining whether or not to accept consignment of the desk or what security precautions should be taken to prevent its loss is not persuasive. Defendant should have known that such documents reflect neither the market value of the Desk nor even plaintiff's estimate thereof. Mr. Claude Sere, the owner of the Desk, testified that as a matter of practice he never insures any works of art during transport. Mr. Sere explained that in this instance, Mr. Joseph Corstjens, the owner of freight forwarding company that had stored the Desk prior to shipping, "forced" him to place a valuation on the Desk for insurance purposes. Mr. Sere explained

The Court was presented with sharply conflicting testimony with respect to the value of the Desk as of September 25, 1985. At trial, plaintiff offered the expert testimony of Mr. Jean-Marie Van Isacker, an assistant vice-president at Christie, Manson & Woods International, Inc. in New York, and Mr. Charles Canet, an expert in 18th century French furniture for the Paris Court of Appeals. Defendant offered the expert testimony of Mr. Barry Leo Delaney, a decorative arts specialist with the concern of O'Toole-Ewald Art Associates, Inc. of New York. After inspecting a photograph of the Desk and reviewing a detailed description of the Desk from Mr. Canet, Mr. Van Isacker testified that the Desk was worth approximately $200,000 to $250,000 in May 1987. Mr. Canet, after physically examining the Desk in December 1984, appraised the Desk for 1,000,000 to 1,250,000 French Francs as of February 14, 1986.*fn1 Mr. Delaney appraised the Desk for $45,000, relying on a photograph of the Desk and a description of the Desk provided by Mr. Canet.*fn2

The Court questions the accuracy of all these appraisals.

Although defendant's expert, Mr. Delaney, never physically inspected the Desk and was uncertain as to the authenticity of the Desk and its artistic detail, he nevertheless valued the Desk at $45,000. Mr. Delaney based this valuation on an inspection of an admittedly poor photograph of the Desk and a description provided by Mr. Canet. Mr. Delaney further relied on the sales of comparable desks made by ...


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