Ok, but, wouldn't "the good stuff" have been the chassis, body and running gear? Wheels? Riveted fuel tank? A couple of body panels? That's "the good stuff"? Given how idle the Classiche department has to be these days (just guessing here), I'm sure they'd LOVE the chance to build up a brand new 0384AM around an original Borrani spinner! For you? Cheap! Only 3 Quadrillion Lira! Or, do they quote in Euros?! CW
CW - Tell me what "etc., etc., etc." means to you? I typed it three times, thinking it would be hard to miss. Guess not. The significance of the parts Karl Kleve kept becomes apparent when one shows up with the stolen portion and tries to get it identified, titled, and put back into commerce. That "possessor" has real problems explaining its past and provenance, as is now occurring in an Ohio court of law. Anyway, enjoy another pic of 0384AM at Sebring. Image Unavailable, Please Login
I want to post the docs. Right now, Swaters has a pending Motion to stop the heirs and myself from talking about the case or from talking to Ferrari - they seek a gag order. I also think it is Swaters who put the docs on lockdown at the Ohio courthouse. I have electronic copies of everything filed so far, by both sides. I will ask my attorneys about it. For now, check out 0384AM racing at Sebring on March 13, 1955, as car #7, drivers: Jim Kimberly and "E.F. Lunken" I think. Image Unavailable, Please Login Image Unavailable, Please Login
"E.F. Lunken" (whether it's him or not) should read "E.P. Lunken" Edmund P or Ebby to his friends. Best, Dave
Just curious: What is your interest in the car? You appear to be a broker but you are involved in the daughter's case?
What we're seemingly arguing about (and I'm not), is what constitutes a car. There are numerous stories of cars (a 312PB comes to mind) being wrecked, dismantled and more than one car built up from those original parts. However, in Ferrari's eyes, there can be only one. So, in some instance, ownership has to be determined based on what portions of the original the two different cars possess. Now, in this case, one owner has the body and chassis, but not the motor (and also trans?), which is owned by a 3rd party. The other owner has bits (gas tank, wheels, body panels, etc., etc., etc.). This is per your post. KK himself stated that he, "had already taken the good stuff off it." So, I'm merely putting your post and KK's quote together. If anything, I question KK's statement the most. That wheels, body parts and etc., etc., etc. are "the good stuff". And, given what Classiche or any other highly competent restoration shop can do, entirely new cars can be fabricated and engines and transmissions acquired (even if not the original motor). All around something as small as a shift knob. So, notwithstanding the theft of this car from KK, hypothetically, if two owners are "presenting" their parts to SpA's Classiche department for certification and restoration, which do they accept as the "real" 0384AM? I should think that someone that brings the chassis and body would have more likelihood of success, as opposed to an owner that presents some wheels and etc., etc., etc.. But, this is merely a question for all. This is not a challenge to either JS or KK's ownership. CW
Based on the pre-restoration pics, the Swaters car appears to have been constructed using the original Ferrari chassis #0384 from Kleve. The chassis is generally accepted as being "the car" for legal purposes. Everything else -- body parts, engine, transmission, rear end, suspension, fuel tank, wheels, interior parts, etc., etc., etc. -- are just accessories that can be recreated for the original chassis, as needed. Of course, from a valuation perspective, the more original parts, the better. So, for example, if party #1 has a 250LM that was constructed using the original Ferrari chassis but everything else is either a reproduction or replacement parts from other cars and party #2 has a 250LM that was constructed using the original Ferrari body (including internal bulkheading) and the matching original Ferrari engine, but reproduction everything else, party #1's car is "the" 250LM and party #2's car is a reproduction. By the way, this is not a hypothetical - there are two 250LMs disputing ownership of the same serial number. As a result, if you're alleging that the Swaters car wasn't constructed using the original Ferrari chassis #0384 from Kleve because he (or his heirs) retain that chassis, that would be a very significant fact, as it would have a extremely adverse effect on the value of the Swaters car.
You ask two distinct, mutually exclusive questions - ownership and authenticity. As to Ownership: It is well established in ALL courts of law that a thief cannot pass title. That is the reason why any subsequent possessor ALWAYS returns the goods he acquired, and if he acquired them in good faith, then he is due reimbursement of purchase price. The good faith or innocent purchaser has to have paid market value and has to have been a reasonably prudent purchaser - i.e did his due diligence, checked the title, checked the VIN plate, etc. As to authenticity: Ferrari Classiche, or any good Ferrari expert, can determine which parts are original to 0384AM. There is really no dispute here, Swaters possesses the "hulk" as shown in that pic of the "hulk" on a steel dolly, while Kleve's heirs possess the bulk of the remaining parts, plus title rights and ownership claims to the hulk. Analysis as to 0384AM: So, in this case, where there has been a theft that puts ownership of the "hulk" (i.e. "stolen portion") at issue, it is a exclusive matter for a court -- it is not a matter for an expert, nor for a shop that fabricates any missing parts. Piling on replica parts to the "hulk" changes nothing and has nothing to do with settling the ownership claim of the hulk. That is why Swaters has come to Ohio. Analysis as to other non-theft type disputes where one party has chassis, and other party has other bits, then the analysis is usually that the rights to the car go travel with the chassis. However, as you know, that is NOT the case here. As I said, it is gonna get very interesting. IMHO the Court has to acknowledge ownership remains with Kleve because any other conclusion sanctions theft and sanctions a sophisticated fencing / laundering operation.
I agree that SpA likely isn't (and, frankly, shouldn't) going to stick its nose in this. 0384AM's ownership IS a matter for the courts. However, as you also know, sometimes we end up with strange results. I mean, JS can present to Classiche for restoration a "hulk" along with a European court's judgement. KK's heirs can present significant parts and documentation supporting their ownership. Both could request a complete restoration. What's SpA to do? I suppose, if I were SpA's counsel, I'd advise them to await the final disposition by the Courts. If, in the alternative, they build a car up for JS (assuming there's no conflict of interest for SpA, given that they have a LONG and close relationship with him), would they also be willing to build-up a car for KK's heirs? And, if so, how does it square that act? More importantly for the community, it muddies the waters for any potential buyers down the road. If there are now TWO 0384AMs floating around, that would necessarily scare me, as a buyer. Interesting problem. CW
Hi, I posted a few videos on Youtube that my friend did with me, on the old days reflections. The sound is terrible, sorry - maybe we try again next visit. You have to type in Allen Markelson, and I think 3 will come up. http://www.youtube.com/watch?v=MKHK-80Rj40 When I visited Maranello I saw this 0384AM car and it didn't need restoration! Marco told me they had just replaced the motor ( the original one, and the chassis was all original), so there is no 2 cars after discussions. I attach an engine photo, Marco said the motor was bought last year in the USA. Prior to that re.uniting of the original motor, Jacques built up a replica motor - all that when the car was under the 0394 number crisis. I was told, with SpA 's shaking heads that that fake number never existed, along with rolling eyeballs and hand gestures. Messy, after reading the rest of the news. I was lucky enough to touch the car again, which was a great thrill, like my Russian girl friend, gave me goose pimples! Geezzz after all the years, goose pimples. Keep up the speed.... I will look for those Gullwing photos, but I never drove an Alloy for Max Hoffman, they were called cheaters, and all that I drove were steel cars. The TRC 500 is in Milan now, I will visit it next year I hope. Allen Markelson Image Unavailable, Please Login
LOL! I'd have suspected you'd be there! Thanks, Ocean Joe....I just try to keep up. These are fascinating tales. I leave my Ferraris laying around, like depicted, maybe I should stop......
coming to this thread late but very intrigued. I was at the '05 sale but never aware of the extent of his collection. I'm always very interested in tales of eccentric collectors..Shakespeare, AK Miller, etc One of Kleve's specials, a dual engined 50's Cadillac survived the sale and is now in southern Ohio, still rotting away outside...and I bought a Model A Ford radiator at the sale. Perhaps I should build something around it as well and call it a car!
[[It is well established in ALL courts of law that a thief cannot pass title.]] Not true. Although that is the US rule, there are a number of non-US jurisdictions that protect a bona fide purchaser for value of goods that, unbeknownst to the BFP, turn out to have previously been stolen. See: http://rile.brinkster.net/Thesis/Ohvall.pdf (pp. 13-17). That law was the basis for Swaters's position. [[That is the reason why any subsequent possessor ALWAYS returns the goods he acquired, and if he acquired them in good faith, then he is due reimbursement of purchase price.]] Also not true. Although that is the US rule, the rule in a number of non-US jurisdictions is that the person from whom the goods were stolen is only entitled to the value of what was stolen, not repossession of the stolen goods. Other non-US jurisdictions explicitly make clear that, in order to repossess the stolen goods from a BFP, the owner needs to compensate the BFP for any increase in value to the stolen goods due to improvements rendered by the BFP. There is obviously a very significant delta between the value of the "hulk" (your term) of #0384 that was stolen from your client's father, and value of the car in its present completely restored state, including its original engine (which was apparently recently purchased from its US owner). Your client is not entitled to a windfall -- only payment for the value of the stolen #0384 hulk, as it existed at the time of the theft.
And, IIRC, didn't the "other" 250LM get Classiche cert? Owned by a friend of JT's, perhaps? Oh, the tangled web Ferrari weaves! CW
First, you would be laughed out of any court if you cited to that academic paper for precedent. Second, if you bother to read that very paper you cite, as to motor vehicles, they have what is called a recording system (i.e. titles), such that to be a good faith purchaser, one must check on who the titled owner is and then be sure he is the one conveying. The way to do that is to have him sign off the title. That is a known legal safeguard that even your paper refers to. As you can probably guess, this was not done; instead, the car, though reported stolen and actually seized by Belgian authorities, is released by Belgian authorities, under the VIN 0384AM. That is all admitted facts in this case. The question becomes how the heck did he get them to release that? Answer . . . . wait for it . . . . tiny country . . . well connected citizen . . . . Then the question becomes if indeed a good faith purchaser, why the change to 0394AM? It was already seized and released as 0384AM, and any Ferrari dealer worth his salt knows about build sheets, and knows there was no such Ferrari ever as 0394AM, so why the changed VIN number???? . . . . Answer . . . wait for it . . . . Why hide the car under a counterfeit VIN for almost ten years? Answer . . . wait for it . . . try S/L (statute of limitations) If you are indeed an attorney, I think you may want to withdraw your comments. And finally, the forum, by agreement, is an Ohio courtroom. So you may want to factor that in your analysis. As I said before, IMHO, a sophisticated fence and launder.
Let me clarify. And, since I'm not a criminal practice attorney I can be corrected on the subject, someone who did not know the goods were stolen would have to return them (actually, the Police would confiscate them and return them to the rightful owner, as in a pawn shop, for example). However, where there is a title involved (some personal and real property), IIRC, the current owner may not be required to return the goods. They relied upon the selling party (and/or the seller's agent) to provide good title (the "good faith purchaser"), and they should not be "out" the money. But, I do think there is some grey area here. For example, works of art that were confiscated by the Nazis were most certainly tracked down and returned to the survivors of the deceased. And, I can't recall the law as it relates to large ticket, Bill of Sale items such as race cars (as opposed to titled vehicles). OTOH, a son of a friend of mine was arrested when he was pulled over for possession of a stolen vehicle. The dealer he had purchased it from had an employee who arragned titles for stolen vehicles and then sold them off the lot. The vehicle was indeed confiscated, and owner of the dealership was apologetic. So, even under certain circumstances when a title is relied upon, stolen property can be confiscated and returned. And, this is in direct conflict with what I've written above, even in this post. However, from my law school days and bar review, I do recall that there are exceptions. And, there's always that old tru-ism, "Possession is 9/10ths of the law." CW
Also, please see uslegal.com for the following... "A person who is innocently is possession of stolen goods will not be guilty of a crime, but generally, the goods will be returned to the owner." Note it says "generally". Thus, it is not a slam-dunk, as you suggest. CW
Heh, in general "innocently" is not necessarily what follows when you buy an old car on a trailer with no papers. If that is something that ends up in court it hardly ever is! Best wishes, Kare
Looking at the facts on this post, it would appear that Swaters has the mortal remains of #0384, with KK's relatives retaining possession of certain parts of the car. It would be difficult to see the owner of the chassis and the majority of parts having less claim than the owner of some parts, no matter how important they are. I am not sure of US law, but in the UK and elsewhere the engine is less important than the chassis and on and on, and certainly this is all very clear in Bugatti/ Bentley circles with the etst being who has the most of the original chassis, front axle, rear axle, engine, body with the answer if you have more than four out of five you have the car. Of perhaps more interest is the fact that the car was released and held under the chassis number #0394 for several years, was the level of knowledge that Jacques Swaters had, seems either incredibly coincidental or ?. And considering Swaters involvement with Ferrari over the past 40 - 50 years, I dont think Spa would bat an eyelid at certifying anything for him. All my humble untrained amateur opinion
