The U.S. Court of Appeals for the Ninth Circuit has upheld the judgment against Marei von Saher on her claims against the Norton Simon Museum in Pasadena to recover Adam and Eve by Lucas Cranach the Elder. The Cranachs belonged to Von Saher’s father-in-law Jacques Goudstikker, a renowned Dutch Jewish art dealer who fled the Netherlands. Yesterday’s decision was the latest in a complicated case, holding that the claim could not proceed because it would conflict with a judgment made by the Dutch government—in a case about paintings that no one disputes were looted by the Nazis but which the Norton Simon refuses to return. Notably, the Ninth Circuit upheld the dismissal entered two years ago by the District Court, but for different reasons. Where the trial court had held in 2016 that Von Saher was not entitled to the paintings by applying substantive Dutch post-war law, the Ninth Circuit yesterday held that it could not entertain the question because it involved a so-called “Act of State,” a doctrine under which courts will decline to review certain kinds of cases that implicate sovereign acts. It was not a complete surprise—the appeals court had hinted at the possibility of applying the doctrine back in 2014 when it remanded the case on one of its multiple trips to the appellate court—but was a curious application of it to a sale by the Dutch government, an act that is quintessentially commercial, not sovereign. It remains to be seen what Von Saher will do next. Von Saher is a complicated dispute that deserved its day in court, not the back of the hand out of “respect” for an “official” act that never actually happened, or an official act that this most recent decision actually contradicts.
Topics: Guelph Treasure, Alois Miedl, Act of State, Jacques Goudstikker, Nazi-looted art, Hermann Goering, Restitution, Marei Von Saher, Ninth Circuit, HEAR Act, A Tragic Fate, George Stroganoff, Commisssie Rechtsverkeer in oorlogstijd, Royal Decree 133, Royal Decree A6, CORVO, Royal Decree 100
One of the issues exposed and exacerbated by the ongoing Gurlitt collection stalemate is the question of Germany’s restitution procedures with respect to art. As the Bavarian legislative proposal to abolish the statute of limitations for claims against bad-faith acquirers is considered by the Bundestag, the “German Advisory Commission for the Return of Cultural Property Seized as a Result of Nazi Persecution, Especially Jewish Property” has issued a decision over what has become known as the “Guelph Treasure” (Welfenschatz) in the collection of the Stiftung Preussischer Kulturbesitz (SPK), the Prussian Cultural Heritage Foundation. The March 20, 2014 opinion (available, so far as I know, only in German at this point at www.lostart.de) underscores the issues around claims of sales under duress, and the appropriate present-day procedural remedy. Readers should also brush up on their medieval German history to keep up.
Topics: Holy Roman Emperor Otto IV, German Supreme Commercial Court, Holy Roman Empire, Guelph Treasure, Bundeshandelsgericht, German Supreme Constitutional Court, Z.M. Hackenbroch, Karl Blechen, Duchy of Brunswick and Lüneburg, Niedersachsen, Karl Ernst Baumann, Act of State, Kingdom of Hanover. Königreich Hannover, Dr Alexander Lewin, Prussia, Lower Saxony, Anselm Feuerbach, Gurlitt Collection, Foreign Sovereign Immunities Act, Preussen, Hans Sachs, German Advisory Commission for the Return of Cultu, Hessen, Fogg Art Museum, Congress of Vienna, Julius and Clara Freund, Kurhannover, Dresdner Bank, Hermann Goring, Austrian Supreme Court, Johann J. August von der Embde, House of Welf, Stiftung Preussischer Kulturbesitz, Wilhelm Leibl, Portrait of Amalie Zuckerkandl, Braunschweig-Lüneburg, Harvard, Portrait der Familie von Dithfurth, Gurlitt, Restitution, George I, J.S. Goldschmidt, World War II, Peasant Girl without a Hat and with a White Headcl, Queen Victoria, Prussian Cultural Heritage Foundation, Art Institute of Chicago, Kurfürsten, Jutta Limbach, www.lostart.de, Soviet Union, Gustav Klimt, Bundesverfassungsgericht, Welfenschatz, Limbach Commission, I. Rosenbaum, Electors