I. Introduction.
Nazi-era looted art in
The loss of property including art in the Nazi-era is an important moral issue. Jewish families were decimated by the Holocaust. Many families were scattered to the winds as was their property. Today these families want to reconnect with their past and obtain back property which was lost in confiscations and forced sales.
In 1998, 44 countries came together in
As a result, the participants in the Washington Conference agreed upon 11 principles regarding Nazi looted art.[1] Primary among these principles is that museums would research their collections and post the provenance of Nazi-era artworks on their websites for the public to see. Another encouraged claimants who lost Nazi-era artworks to come forward. And finally museums were to seek "fair and just solutions" to Nazi-era claims when claimants did come forward. Some have called these principles "softlaw" because they are morally based but are not enforceable in court.
Each country was encouraged to pass laws and set up art commissions in their own country to carry out the principles of the Washington Conference recognizing that each country is different and has its own unique legal system and administrative bodies.
With respect to how this should be carried out, Stuart Eizenstat the co-chair of the Washington Conference and then Under Secretary of State of the
We can begin by recognizing that as a moral matter, we should not apply rules designed for commercial transactions of societies that operate under the rule of law to people whose property and very lives were taken by one of the most profoundly illegal regimes the world has ever known.[2]
In other words, Nazi-era losses occurred under special circumstance which must be dealt with on a basis which takes into account the circumstances of the loss, the fact that these profoundly illegal acts took place over 60 years ago, and should not simply be dealt with by applying the common law, including statutes of limitation and laches defenses, as if the events in question happened only recently in a normal society.
The reason why an event such as the Washington Conference was necessary was to highlight the fact that these losses occurred on an unprecedented scale and to a great extent have not yet been remedied.
II. The International Response.
Different countries have responded to the Washington Conference in different ways. Some have called this “restitution roulette,” since one country=s response could be very different from another, which would mean that the same loss might be treated differently, depending on where the artwork ended up.
For example a Nolde artwork looted from a Jewish family in Germany in 1939, which a Swedish museum bought at auction from an art dealer in Switzerland in the 1960's, was treated in the following manner: The claimants contacted the museum on several occasions to ask for the return of the painting. The museum responded by acknowledging that the artwork had been looted from the family in
Although finally acknowledging that it was a signatory of the Washington Conference and taking some limited action, the Swedish government failed to pass any restitution law or establish a national art commission to handle the claim in a neutral manner. Instead it acted only on an ad hoc basis and only after it had received considerable criticism in the press.
Contrary to the Swedish example,
Some of the artworks which have been returned by German museums in cases where our firm was involved include: "The Watzmann" by Casper David Friedrich which was sold by the Brunn family to the National Galerie in
Similar to
III.
So far, the
Instead, the American Association of Museums (AAM) and the Association of American Museum Directors (AAMD) came up with guidelines as to how museums should deal with Nazi-era artworks in their collections. This includes reviewing the provenance of artworks in the museum=s collection and posting this information on the museum's website. In addition, a self-policing system was created whereby museums are supposed to resolve Nazi-era art claims "with the claimant in an equitable, appropriate, and mutually agreeable manner."[11] Under the AAM and AAMD guidelines,
The AAM and AAMD guidelines also instruct
Nowhere however in the AAM and AAMD guidelines does it say that museums are supposed to bring suit against claimants who may come forward with their morally based claims under the Washington Conference. However, that is just what some
In January 2006 two museums, the Toledo Museum of Art and the Detroit Institute of Art, filed suit against the heirs of Martha Nathan, a Jewish woman from
Following the sale, the artworks were shipped to
After seeing the artworks posted on the museums’ Nazi-era websites, the heirs contacted the museums to discuss their Nazi-era provenance. Shortly thereafter, during a meeting between the heirs and the museum directors, both museums simultaneously filed suit to quiet title against the Martha Nathan heirs in the respective local federal district courts where the museums were located.[15] The heirs responded with replevin claims for the return of the artworks. However, the museums refused to waive their statute of limitations and laches defenses, as provided for under the AAM and AAMD guidelines and instead asserted them as affirmative defenses. Eventually both federal courts ruled that the heirs= replevin claims were barred by the statute of limitations. The federal court in Toledo found that the statute of limitations expired no later than four years after the Washington Conference in 1998 (although the artworks were first posted on the museum’s website and were first discovered there by the heirs at a later date), and the Federal Court in Detroit found that the statute of limitations expired four years after the 1938 sale of the artworks.[16]
Following the Martha Nathan decisions,
Recently, the MoMA and Guggenheim museums filed suit in
IV. Reforming the
Although Schoeps showed that in some cases the technical defenses of statutes of limitations and laches can be overcome, the real issue is should such defenses be permitted at all in Nazi-era looted art cases. Since the Nazi-era occurred over 60 years ago, it goes without saying that the deck is stacked against Nazi victims who come forward with their morally based softlaw claims under the Washington Conference, especially if U.S. museums are permitted to intimidate claimants (who the Washington Conference principles encourage to come forward) by using declaratory judgment actions as a sword, while at the same time asserting the statute of limitations and laches defenses as a shield against the claimant’s replevin counter-claims.
A much more fair and responsible approach would be to eliminate the defenses of statute of limitations and laches for a policy of having all Nazi-era claims be decided on the merits rather than permitting replevin claims to be dismissed based upon technical defenses, which seek to establish blame on the part of the claimant for not coming forward earlier with the claim.
Another alternative to insure that Nazi-era art claims be decided on their merits, would be to establish a national art commission with exclusive jurisdiction over such claims to insure that they be decided by a neutral decision maker on the merits. Such a solution would bring the
In short, the United States needs to reform its response to the Washington Conference to insure that Nazi-era art claims be decided on their merits. The statute of limitations and laches defenses should be eliminated where Nazi-era art claims are litigated in
David J. Rowland, Esq.
Rowland & Petroff
Phone (212) 685 - 5509
Fax (212) 685 - 8862
Email: davidjohnrowland@cs.com
www.rowlandlaw.com
February 16, 2009
Presented to the Federal Bar Council
2009 Winter Bench and Bar Conference
[1] See Proceedings of the Washington Conference On Holocaust-Era Assets, released April 1999, 971, available at http://www.state.gov/www/regions/eur/holocaust/heac.html.
[2] Stuart E. Eizenstat, Explanation of the
[3] See e.g. CATHERINE HICKLEY, Nazi Victim’s Heirs Lose Patience with Sweden on Art, Bloomberg, January 29, 2008 available at http://www.bloomberg.com/apps/news?pid=20601085&sid=aCb5TMSfIOus&refer=europe (last visited February 20, 2009).
[4] See http://www.lostart.de/nn_64192/Webs/EN/Kommission/Index.html?__nnn=true.
[5] See KIRSTEN GRIESHABER, Returned Painting Returns, NY Times March 29, 2004 available at http://query.nytimes.com/gst/fullpage.html?res=9E0DE0D71E30F93AA15750C0A9629C8B63 (last visited February 20, 2009).
[6] David Minthorn, A Painting with a Contested Past in the Nazi Era Makes Its Way to NYC, The Boston Globe, July 27, 2007 available at http://www.boston.com/ae/theater_arts/articles/2007/07/27/a_painting_with_a_ contested_past_in_the_nazi_era_makes_its_way_to_nyc/ (last visited February 20, 2009).
[7] Gunnar Schnabel and Monika Tatzkow, The Story of Street Scene - Restitution of Nazi Looted Art - Case and Controversy (2008), see also http://www.story-of-street-scene.com/buch.html.
[8] In a recent case in
[9] Cal. Civ. Proc. Code ' 354.3
[10] See Von Saher v.
[11] Guidelines Concerning the Unlawful Appropriation of Objects During the Nazi Era, 4(c) available at http://www.aam-us.org/museumresources/ethics/nazi_guidelines.cfm.
[12]
[13] Association of Art Museum Directors, Report of the AAMD Task Force on the Spoliation of Art during the Nazi/World War II Era (1933-1945),
available at http://www.aamd.org/papers/guideln.php.
[14] See Fn 12 at 4(f).
[15]
[16] A much different result occurred in two very similar cases handled by art commissions in
After the Martha Nathan cases were decided, another very similar case was decided by the Restitutions Committee in the
Although treated entirely differently in the
[17] Schoeps v.