The U.S. Court of Appeals for the Ninth Circuit yesterday affirmed the 2019 judgment that allowed the Thyssen-Bornemisza Collection Museum in Madrid to retain Camille Pissarro’s Rue St. Honoré, après-midi, effet de pluie (Rue St. Honoré, Afternoon, Rain Effect) (1892), a painting sold under duress by Lilly Cassirer to a Nazi in 1939. Absent rehearing by the full Ninth Circuit or Supreme Court review, the decision may bring to an end the Cassirers decades-old effort to win restitution of a painting that no one disputes is Nazi-looted art, yet the museum refuses to return. The result turns on the highly deferential standard of review for findings of fact by the trial court about the state of knowledge by Baron Hans-Heinrich Thyssen-Bornemisza when he acquired the painting in 1976. Yet the Ninth Circuit’s lack of enthusiasm for this result fairly leaps off the page, however, first with its decision to issue an unsigned opinion not for publication, and by seconding the District Court’s disappointment in the ruling under review “that Spain and TBC’s refusal to return the Painting to the Cassirers is inconsistent with Spain’s moral commitments under the Washington Principles [on Nazi-Confiscated Art] and Terezin Declaration.” The Court of Appeals’ statement about Spain and the museum that “It is perhaps unfortunate that a country and a government can preen as moralistic in its declarations, yet not be bound by those declarations” is a reminder of the limitations of these moral imperatives that, ironically, many current possessors argue are sufficient to address the problem of Nazi-looted art. It is absolutely true that moral principles often do not have the force of law. It is equally true, however, that flouting moral principles warrants moral sanction. And as multiple judges of the United States have found, Spain deserves just that.
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Topics:
Terezin Declaration,
Thyssen-Bornemisza Collection,
Rue St. Honoré après-midi êffet de pluie,
Claude Cassirer,
Cassirer,
Foreign Sovereign Immunities Act,
Washington Principles on Nazi-Confiscated Art,
Stiftung Preussischer Kulturbesitz,
FSIA,
expropriation exception”,
Baron Hans-Heinrich Thyssen- Bornemisza,
Welfenschatz,
A Tragic Fate,
Reichskammer der bildenden Künste,
Jakob Scheidwimmer,
Reich Chamber of the Visual Arts,
Madrid
A recent report by the World Jewish Restitution Organization (WJRO) has made strong criticisms of American museums with respect to their handling of Nazi-looted art claims. In particular, the report criticizes the assertion of timeliness defenses such as statutes of limitations. The report focuses in particular on cases involving the Museum of Fine Arts, Boston, the Norton Simon Museum in Pasadena, the Toledo Museum of Art, and the Fred Jones, Jr. Museum at the University of Oklahoma. There is no state control over the vast proportion of art in America the way there is in most European countries, and thus, no possibility of singular, nationalized approaches. In response to the report, some of the museums mentioned have defended their strategies, though in some cases the players are talking past each other. What is undeniable is that whether as a function of the nature of U.S. museums (largely private, rather than public), it is hard to say there is a coordinated approach to the issue, good or bad. The report is lengthy and detailed, and well worth a read in depth that space here does not permit. In some ways, the question it poses boils down to this: is determining the historical truth the obligation of everyone involved or is there some room to prevail without addressing the larger issues?
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Topics:
Toledo Museum of Art,
Street Scene in Tahiti,
Léone Meyer’s,
American Association of Museums,
Two Nudes,
La bérgère,
AAMD Task Force on the Spoliation of Art during th,
Thyssen-Bornemisza Collection,
Rue St. Honoré après-midi êffet de pluie,
University of Oklahoma,
Cassirer,
Nazi-looted art,
Washington Conference on Holocaust Era Assets,
Fred Jones Jr. Museum,
Washington Principles on Nazi-Confiscated Art,
World Jewish Restitution Organization,
WJRO,
Association of Art Museum Directors,
Restitution,
American Alliance of Museums AAM,
World War II,
Paul Gaugin,
Camille Pissarro,
Oskar Kokoschka,
Museums,
Museum of Fine Arts Boston,
AAMD,
Norton Simon Museum in Pasadena
I’ve been talking quite a bit to friends, colleagues and clients about the impact of last week’s decision in the Cassirer v. Thyssen Bornemisza case. The New York Times had a follow up article yesterday which was an interesting treatment of the various themes at work in the case and in restitution cases in the United States generally these days. In fact, I think the effect is mostly limited, except to the extent that the decision assumes and treats as uncontroversial important principles about sales under duress and is a case that resolved title under the Foreign Sovereign Immunities Act (FSIA). As we predicted, the Times article makes clear that the museum has absolutely no intention of giving the painting back, but did float the idea of some recognition of the historical circumstances, which is progress (certainly compared to other instances in which obvious circumstances of duress are denied).
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Topics:
Lilly Cassirer Neubauer,
Terezin Declaration,
Thyssen-Bornemisza Collection,
Rue St. Honoré après-midi êffet de pluie,
Jacques Goudstikker,
California Code of Civil Procedure § 354.3,
Nazi-looted art,
Foreign Sovereign Immunities Act,
Washington Conference Principles,
Bakalar v. Vavra,
Fritz Grünbaum,
FSIA,
adverse possession,
expropriation exception”,
Restitution,
Marei Von Saher,
sovereign immunity,
Egon Schiele,
Jakob Schweidwimmer,
World War II,
Foreign Sovereign Immunities,
Restatement (Second) of Conflict of Laws § 222,
Altmann v. Republic of Austria,
Camille Pissarro,
foreign affairs doctrine,
Ninth Circuit Court of Appeals,
Museums,
Baron Hans-Heinrich Thyssen- Bornemisza,
28 U.S.C. § 1605
One of the longest running art restitution litigations in the United States has been dismissed for a second time, with another appeal likely to follow. The heirs of Lilly Cassirer Neubauer have been pursuing the return of Camille Pissarro’s Rue St. Honoré, après-midi, êffet de pluie from the Thyssen-Bornemisza Collection in Madrid for more than ten years, but on June 4, 2015 the U.S. District Court in Los Angeles ruled that the Spanish museum has acquired full title to the painting by adverse possession. The key aspect of the decision is the court’s resolution of the choice of law question, namely, should California law or Spanish law apply to the question of who owns the painting? After a lengthy analysis the court determined that Spanish law applies, and that the museum has possessed the painting long enough to have become the owner regardless of the fact that it was sold under duress. So now a case that has already been to the Ninth Circuit Court of Appeals twice will almost certainly head back a third time. The court concluded its decision by appealing to the parties to “pause, reflect, and consider whether it would be appropriate to work towards a mutually-agreeable resolution of this action, in light of Spain’s acceptance of the Washington Conference Principles and the Terezin Declaration, and, specifically, its commitment to achieve “just and fair solutions” for victims of Nazi persecution.” But it is hard to see why that would happen. Notwithstanding the dictates of the Washington Principles, the Collection has been quite content to resist the claim. Now that it has won, it is hard to imagine it suddenly taking a different view.
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Topics:
Lilly Cassirer Neubauer,
Terezin Declaration,
Thyssen-Bornemisza Collection,
Rue St. Honoré après-midi êffet de pluie,
Jacques Goudstikker,
California Code of Civil Procedure § 354.3,
Nazi-looted art,
Foreign Sovereign Immunities Act,
Washington Conference Principles,
FSIA,
adverse possession,
expropriation exception”,
Restitution,
Marei Von Saher,
sovereign immunity,
Jakob Schweidwimmer,
World War II,
Foreign Sovereign Immunities,
Restatement (Second) of Conflict of Laws § 222,
Altmann v. Republic of Austria,
Camille Pissarro,
foreign affairs doctrine,
Ninth Circuit Court of Appeals,
Museums,
Baron Hans-Heinrich Thyssen- Bornemisza,
28 U.S.C. § 1605,
Welfenschatz
The U.S. Court of Appeals for the 9th Circuit restored last week claims by heirs of Lilly Cassirer against the Thyssen-Bornemisza Collection for the return of the Camille Pissarro painting Rue St. Honoré, après-midi, êffet de pluie.
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Topics:
Nuremberg laws,
Schwabinger Kunstfund,
Cornelius Gurlitt,
Lilly Cassirer,
California Code of Civil Procedure § 338(c),
Dorothy Nelson,
Thyssen-Bornemisza Collection,
Julius Schoeps,
Rue St. Honoré après-midi êffet de pluie,
Claude Cassirer,
Von Saher v. Norton Simon,
de Csepel,
Jacques Goudstikker,
California Code of Civil Procedure § 354.3,
Gurlitt Collection,
Foreign Sovereign Immunities Act,
Hans Sachs,
Von Saher v. Norton Simon Museum of Art at Pasaden,
Madame Soler,
Bundesgerichtshof,
Hildebrand Gurlit,
Entartete Kunst,
Hans-Heinrich Thyssen-Bornemisza,
Hungarian National Gallery,
Nazis,
Munich,
Deutches Historisches Museum,
FSIA,
Preemption,
Gurlitt,
Harry Pregerson,
Restitution,
field preemption,
Marei Von Saher,
Herzog collection,
Bavaria,
Claudia Seger-Thomschitz,
Looted Art,
World War II,
Foreign Sovereign Immunities,
Pinakothek der Moderne,
degenerate art,
Altmann v. Republic of Austria,
578 F.3d 1016,
Freistaat Bayern,
beschlagnahmte Kunst,
Camille Pissarro,
Kim McLane Wardlaw,
Nürnberger Gesetze,
Raubkunst,
Museum of Fine Arts Boston,
Cassirer v. Thyssen-Bornemisza Collection,
verschollene Kunst,
Kunstfund München
