United States District Court, Southern District of New York
January 31, 1991
BAUDOUIN DUNAND, AS ASSIGNEE, PLAINTIFF,
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
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
I refused to give him [Mr. Corstjens] a value and he
insist [sic] and saying, "You must give me a value of
something." So I said, "Put anything, put 10,000 if
Trial Transcript, at 28. Based upon Mr. Sere's
testimony, it appears that the customs declaration
and insurance statement were merely formalities
required by the freight forwarder and were not
intended to provide an accurate valuation upon which
defendant should have relied.
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 cabinetmakers other than C.C. Saunier in
auction houses throughout New York during the relevant period.
The Court is unable to accept Mr. Delaney's appraisal as the
value of the Desk on September 25, 1985 in view of his
reservations about the authenticity of the Desk and his lack of
opportunity for a physical inspection of it. Throughout his
testimony, Mr. Delaney was evasive on the issue of whether or not
he accepted Mr. Canet's description of the Desk at "face value."
At first, Mr. Delaney testified that he accepted Mr. Canet's
report at "face value" because he could not physically examine
the Desk nor make exact measurements. On cross-examination,
however, he explained that he disregarded certain aspects of
Canet's appraisal and completed his appraisal without determining
conclusively whether or not the Desk was a Louis XVI desk by
Saunier or even whether it was made of mahogany. The following
colloquy, in which the Court incorporated Mr. Canet's description
of the Desk in a hypothetical question, is of particular note:
THE COURT: But suppose you had affidavits from ten
out of the leading ten experts on Louis XVI furniture
who said we have all examined the desk and it is
stamped as having been made by Saunier and we
conclude that it's made by Saunier and that it was
made during the Louis XVI period and that it is in
excellent condition with no restoration and that it
is covered in veined [mahogany] with the original
gilt bronze fittings, would you have rendered a
higher appraisal [than $45,000]?
THE WITNESS [Mr. Delaney]: I might have, yes.
Trial Transcript, at 128-129. The Court therefore finds that Mr.
Delaney's testimony furnishes no reliable basis for valuation of
Plaintiff's expert, Mr. Van Isacker, placed a value on the Desk
at a figure between $200,000 to $250,000. However,
the method he claims to have used to reach that figure yields a
different valuation when employed by the Court. Both Mr. Van
Isacker and Mr. Canet based their valuations of the Desk, at
least in part, on the appraised value of comparable desks during
the time period in question. A review of such "comparable" desks
by the Court, however, does not substantiate the appraisal range
offered by plaintiff's experts.
Unfortunately, the Court was not provided with a 1985 appraisal
of a "comparable" desk in which it could place any confidence.
The Court was furnished, however, with a 1987 auction catalogue
of Sotheby's, Inc. ("Sotheby's") showing a number of antique
French desks. The most comparable was a Louis XVI desk made by
the French cabinetmaker, Benneman, which was the subject of
extensive testimony. Although the Benneman desk, appraised at
$70,000 to $90,000 in Sotheby's 1987 catalogue, was of slightly
higher value than the Saunier desk at issue, the Court finds that
it may nonetheless serve as an appropriate basis for
Mr. Van Isacker testified that the appraisals in Sotheby's
auction catalogues were based on "comparable sales prior to the
time of that appraisal," Trial Transcript, at 90, and, as a
reflection of the art market's recent price history, offer some
indication of the value of comparable pieces of art in the years
immediately preceding the catalogue publication. The Court
accordingly views Sotheby's 1987 auction catalogue as a useful
starting point in its calculation of the value of the Saunier
Mr. Van Isacker also testified that market prices for 18th
century French furniture appreciated at a rate of 5% to 10% per
year during the relevant period, Trial Transcript, at 94. Based
upon that evidence, the Court deduces that the Benneman desk, was
worth between approximately $63,000 and $81,000 in September
It follows, therefore, that the Saunier Desk, being somewhat
less valuable than that of Benneman, would have been worth
somewhere near the lower end of the range of $63,000 to
The Court accordingly finds that the Desk was worth $65,000 on
September 25, 1985. Judgment against defendant will be entered in
favor of plaintiff in the amount of 80% of $65,000, or $52,000,
plus prejudgment interest at the rate of 9% per annum from
September 25, 1985.
Settle judgment order on 10 days' notice.