The Art Newspaper 27 August 2010
By Martha LufkinA judge finds that the Thyssen-Bornemisza Collection Foundation and the Kingdom of Spain can be sued for the return of a painting seized by German officials in 1939
A federal court in California ruled on 12 August that the Thyssen-Bornemisza Collection Foundation and the Kingdom of Spain may be sued for the return of a painting by Pissarro, even if they took no part in the alleged Nazi looting of the work. The question involved a determination of when a foreign nation is immune from suit in the US.
In May 2005, the Foundation and Spain were sued for recovery of Pissarro’s Rue Saint Honoré—Afternoon, Rain Effect ” which was owned by Lilly Cassirer Neubauer, a Jew in Nazi Berlin. Her heir, Claude Cassirer, says that in 1939, she was forced to relinquish it to a Nazi official to obtain exit visas to flee Germany. The painting is now located at the Thyssen-Bornemisza Museum in Madrid.
Both Spain and the Foundation, an instrumentality of the state, have argued that they are immune from lawsuit in the US, under the US Foreign Sovereign Immunities Act (FSIA), which protects foreign states, with some exceptions. Cassirer is citing the “expropriation” exception, under which foreign nations may be sued in cases involving rights in property taken in violation of international law. But Spain and the Foundation insist that the exception cannot apply because it was Nazi Germany that allegedly took the painting, not them; they merely bought it later. In addition, they say, the Foundation is not engaged in “commercial activity” in the US, which is a requirement for the expropriation exception to apply.
In the August decision, Judge Pamela Rymer of the Ninth Circuit Court of Appeals in San Francisco said that under the expropriation exception, a foreign nation may be sued where “any” property was taken in violation of international law, not just property taken “by the foreign state being sued”. The law “would have to be redrafted” to achieve the Foundation’s interpretation, she said.
The court also ruled that the Foundation’s activities in the US met the required “commercial activity”. Judge Rymer cited numerous commercial activities in the US, including selling posters and books, licensing reproductions, paying US citizens to write for catalogues, permitting a film to be made that included a picture of the disputed Cassirer painting which was shown on Iberia Airline flights, sending information to Spain’s tourism offices in the US, borrowing and lending art, and many other activities. Some of the Foundation’s activities “encourage Americans to visit the museum where the Pissarro is featured,” Judge Rymer added, or “relate to the painting itself”.
The court also ruled that Cassirer was not required to pursue remedies in Spain before seeking to sue in the US.
Stuart Dunwoody, Cassirer’s lawyer in Seattle, told The Art Newspaper that, “Spain has repeatedly committed to return Holocaust-looted art,” and that now that the appeals court has rejected the sovereign immunity defense, “Spain and the Thyssen-Bornemisza Foundation should live up to their commitments and return the painting to Cassirer immediately.”
But Thaddeus Stauber of Los Angeles, a lawyer for the Foundation, cited a strong dissent to Judge Rymer’s decision, which argued that the lawsuit does not belong in US courts. In light of this, he said, “we are evaluating whether to seek further review of the jurisdictional issue.” Should the case now proceed, “we look forward to the opportunity to present the complete historical record which confirms the Foundation’s rightful ownership,” he said.
The case will now go back to the trial court unless the US Supreme Court decides to review Judge Rymer’s opinion. Cassirer is seeking return of the painting or money damages.