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of enthusiasm for this result fairly leaps off the page, however, first with its decision to issue an unsigned opinion not for publication, and by seconding the District Court’s disappointment in the ruling under review “that Spain and TBC’s refusal to return the Painting to the Cassirers is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.
Topics: Terezin Declaration, Guelph Treasure, 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
One of the longest-running court cases in the United States about art looted by the Nazis has been decided in favor of the current possessor, the Thyssen-Bornemisza Museum in Madrid, an instrumentality of the Kingdom of Spain. The U.S. District Court in Los Angeles ruled on April 30, 2019 against the heirs of Lilly Cassirer, a German Jew whom the Nazis targeted in 1939 for a forced sale of Rue Saint–Honoré, après-midi, effect de pluie (1892). The ruling is the second time that the museum has prevailed in the District Court as the owner of the painting under Spanish law, now on the grounds the museum did not know of the painting’s looting history when it acquired the work and that it held the work publicly for long enough to become its owner even though it had been stolen. The ruling, while favorable to the museum in this case, confirms important principles about the inability of successive possessors to acquire good title to artworks stolen by the Nazis, and the importance of diligence and pursuing questions raised by red flags in the chain of title. Notable as well was the Court’s pointed criticism of Spain for failing to adhere to the spirit of the Washington Principles on Nazi-Confiscated Art, and Spain’s failure to “comply with its moral commitments.”
Topics: Walter Feilchenfeldt, Third Reich, Terezin Declaration, Gestapo, Lilly Cassirer, Claude Cassirer, Jacques Goudstikker, Nazi-looted art, Czechoslovakia, Spain, Washington Principles, Baron Hans-Heinrich Thyssen- Bornemisza, A Tragic Fate, Law and Ethics in the Battle Over Nazi-Looted Art, Reichskammer der bildenden Künste, flight taxes, Rue Saint–Honoré, Julius Cassirer, Paul Durand-Ruel, Ludwigstrasse, Dr. Cassirer and Co. Kabelwerke, Jakob Scheidwimmer, Sydney Schoenberg, Hahn Gallery, Thyssen-Bornemisza Museum, Military Government Law No. 59, Reich Chamber of the Visual Arts, Ari Walter Kampf, Eugen Kampf, Knoedler & Co. Gallery, encubridor
The United States Senate Appropriations Committee has passed its annual State Department appropriations bill, and it includes a strong instruction on Holocaust-era looted assets. The bill, entitled the Department of State, Foreign Operations, and Related Programs Appropriations Act, 2016 (S. 1725) was accompanied by the Committee’s report, which would direct the State Department to include in an annual report an assessment of U.S. domestic law and foreign countries’ status on their compliance with the Washington Principles and the Terezin Declaration. As the World Jewish Restitution Organization (WJRO) and the Conference on Jewish Material Claims Against Germany (Claims Conference) observed last year, that progress is mixed, at best. This is a budget bill, meaning it is just the first step in allocating resources for the U.S. government in the year to come (in this case, for the State Department).
Topics: Legislation, looted property, Office of the Special Envoy for Holocaust Issues, Terezin Declaration, S. 1725, Georg Baselitz, Washington Conference Principles on Nazi-Confiscat, 2009 Terezin Declaration, Holocaust, World Jewish Restitution Organization, Department of State Foreign Operations and Related, Report on International Religious Freedoms, 1998 Washington Conference on Holocaust-Era Assets, WJRO, Restitution, Nazi-looted, Secretary of State, World War II, United States Senate Appropriations Committee, Gerhard Richter, Washington Principles, Conference on Jewish Material Claims Against Germa
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).
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.
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
After the 1998 Washington Conference on Holocaust Era Assets and the eponymous Washington Conference Principles on Nazi-Stolen Art that came out of it, it is hardly surprising that a recurring theme has been to assess the progress of those nations that participated and signed on. Equally unsurprisingly, those assessments are usually more anecdotal than empirical, and usually arise out of a particular case or cases in the context of that country’s response.
Topics: Graham Bowley, Macedonia, Netherlands, Terezin Declaration, Mussolini, Latvia, Dr. Wesley A. Fisher, Hungary, ICOM, Bulgaria, Commission for the Compensation of Victims of Spol, Germany, Bavarian Minister of Culture, Nazi-looted art, Die Welt, Belarus, Lex Gurlitt, Washington Conference on Holocaust Era Assets, France, Dr. Ruth Weinberger, Romania, Baron Mor Lipot Herzog, Winfried Bausbeck, Belgium, Slovakia, Vichy, World Jewish Restitution Organization, Bundesrat, Washington Conference Principles on Nazi-Stolen Ar, Gurlitt, WJRO, NS Raubkunst, Restitution, International Council of Museums, Norway, United States, Luxembourg, Looted Art, World War II, St. Petersburg, Poland, beschlagnahmte Kunst, Ukraine, Austria, Serbia, Conference on Jewish Material Claims Against Germa, Italy, Bosnia, New York Times, Monika Grütters, Slovenia, Estonia, Museum and Politics Conference, National Gallery, Museum of Fine Arts, entzogogene Kunst, Czech Republic
Raising another hurdle to restitution claims, the U.S. District Court in Los Angeles against the Norton Simon Museum to the remnants of the famed Jacques Goudstikker collection, on the grounds that her case is preempted by the United States’ foreign affairs doctrine. In an unusually apologetic decision, the court ruled that regardless of the merits of her claims, the law of foreign affairs makes the dispute inappropriate for resolution by civil litigation.
Topics: Terezin Declaration, Culture, Norton Simon Museum, Hungary, Thyssen-Bornemisza Collection, Jacques Goudstikker, Cassirer, Hungarian National Gallery, George Stroganoff-Scherbatoff, Holocaust Victims Redress Act, Restitution, Marei Von Saher, and Science, effet de pluie, World War II, Foreign Sovereign Immunities, Lucas Cranach the Elder, Rue St. Honoré, Camille Pissarro, Dutch Secretary for Education, Göring, Soviet Union, Washington Principles, American Ins. Ass’n v. Garamendi, Dunbar v. Seger-Thomschitz, Adam and Eve, California Code of Civil Procedure 354.3