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