Van Gogh painting appeal to be heard

The Globe and Mail 10 February 2007
James Adams

Along-awaited appeal by a Canadian lawyer and his family over the ownership of a Vincent van Gogh canvas currently held by actress Elizabeth Taylor is scheduled to be heard Monday morning in a U.S. Court of Appeal in Los Angeles.

The painting -- which the 74-year-old Taylor has owned for more than 40 years and which some now estimate to be worth at least $15-million (U.S.) -- was originally purchased 17 years after van Gogh's suicide, in 1907 by Margarete Mauthner, the great-grandmother of Hamilton lawyer Andrew Orkin. A Jew living in Berlin, Mauthner was forced to flee Nazi Germany in 1939 for South Africa where she lived until her death, at 84, in 1947.

It's the contention of Orkin, 54, his two siblings and an uncle, the last three of whom reside in South Africa, that Taylor is in possession of stolen goods because the 1889 painting was one of numerous Mauthner properties she was forced to surrender as the Nazis progressively tightened the oppression of German Jews before the Second World War.

The appeal seeks to overturn a February, 2005, U.S. district court ruling that said Orkin's ownership claim, filed in a 2004 suit, was invalid because it fell outside both California statute of limitations law and legislation that says such claims can "only apply against museums and galleries," not individuals.

In California, plaintiffs are permitted to sue only three years from the date a property was "taken, detained or injured." Since Taylor claimed the disputed work, Vue de l'asile et de la Chapelle de Saint-Rémy, after her father bought it for her from Sotheby's London auction house in 1963, "the statute of limitations . . . [had] long since expired," the district court ruling declared.

Monday's appeal hearing is expected to be brief, with the presiding judge likely to reserve decision for an unspecified time. It's occurring against a backdrop of heightened awareness of -- and debate about -- issues related to the restitution of Nazi-era art, at a time when as many 100,000 art objects owned by European Jews before 1933-45 remain unaccounted for. Just 13 months ago, an Austrian arbitration court returned five paintings by Gustav Klimt (1862-1918) to the California-based heirs of their original owner, almost 70 years after their confiscation by the Gestapo. All five have since been sold privately or at auction for a total of more than $325-million (U.S.).

In appeal documents filed in the summer and fall of 2005, lawyers for Orkin and his relatives argue that the February, 2005, decision failed to adequately consider the relevance of the Holocaust Victims Redress Act, the Nazi War Crimes Disclosure Act and the U.S. Holocaust Assets Commission Act -- all passed in 1998 -- to their case. These federal statutes, they say, were designed to permit survivors of Nazi persecution and their heirs to go out and legally recover Nazi-confiscated art, with the understanding that "persons in wrongful possession of stolen property do not get good title by having the applicable limitation period run out automatically."

Quoting former Iowa Republican congressman Jim Leach, one of the framers of the Redress Act, they say, "History does not have a statute of limitations."

Counsel for Orkin further argue that Taylor, before and after buying the van Gogh for $260,000 (U.S.), didn't do "due diligence" in informing herself about the "slipshod provenance" of the painting after it left Mauthner's hands. They say the actress could have consulted three van Gogh catalogues raisonnés, including ones published in 1933 and 1970, that seem to indicate that Mauthner held onto the disputed painting into the Nazi era before it ended up with its penultimate owner, Alfred Wolf.

A wealthy German Jew, Wolf fled the Nazis at an undetermined date for Switzerland -- a country Orkin's counsel characterize as "a primary destination for many art works that Jewish collectors . . . had lost as a result of both Nazi economic coercion and outright seizure." In 1941, Wolf moved to Argentina and upon his death in the early 1960s, his family sold his collection of Impressionist and Post-Impressionist paintings at the auction attended by Taylor's father.

Unsurprisingly, lawyers for Taylor will argue that the February, 2005, decision should be upheld by the appeal court. In documents filed earlier on Taylor's behalf, they assert the Orkin family has provided only "suspiciously sparse and vague factual allegations," to show that Mauthner was forced to give up the disputed van Gogh as a result of Nazi coercion. It's Taylor's contention that Mauthner voluntarily gave up the painting and Alfred Wolf took it into his collection some time between 1928 and 1933.
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