Author: Thomas R. Kline
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Will Third Visit to Ninth Circuit U.S. Court of Appeals Be Déjà Vu All Over Again for Norton Simon Museum?
Marei von Saher, heir of Jacques Goudstikker, one of the leading pre-War dealers in The Netherlands, has brought suit against the Norton Simon Museum of Art at Pasadena in California to recover possession of paintings of Adam and Eve by Lucas Cranach the Elder. During the wartime occupation of The Netherlands, Alois Miedl, a close associate of Hermann Goering, took over the Goudstikker gallery, running it on his own behalf and for the benefit of his master, transferring paintings to Goering and otherwise disposing of the gallery stock. In her lawsuit, Von Saher alleges that Norton Simon has wrongful possession of artwork looted from the Goudstikker gallery. The litigation has twice been decided by the trial court in favour of the Museum, however, the Ninth Circuit U.S. Court of Appeals has twice reversed and remanded the case to the trial court. In the most recent decision by the trial court, its third, the court ruled again in favour of the Museum, applying very strict and stingy Dutch law from the immediate post-War period and ignoring more recent international developments, such as the Washington Principles, that encourage “just and fair” resolution of claims to restitution of artwork based on allegations of looting during the Nazi era and World War II. Mr. Kline’s article reviews and untangles the most recent decision by the trial court and asks the question whether this decision, the fifth court decision overall in the case, is likely to be affirmed or reversed by the Court of Appeals. Mr. Kline has not previously participated in this case, however, since publication of his article in the IFAR Journal, he has undertaken to prepare an amicus curia, or friend of the court, brief supporting von Saher’s claim in the court of appeals.
Claims for restitution of artworks alleged to have been looted during the National Socialist era continue and, if anything, have grown in complexity and become more difficult to resolve both in Europe and the United States. There are overwhelming factual and legal differences particularly between the U.S.A. and continental European countries, however, approaches on both sides of the Atlantic lead to legal uncertainty and to unpredictable outcomes. The author identifies specific factual and legal differences, such as the absence of good faith purchaser rules in the United States and more stringent statutes of limitations in Europe. At the same time, European national organizations have been more active in intervening in these cases and in developing special rules, particularly with regard to art held by government entities. American museum associations, which play some of the roles cultural ministries do in Europe, have all but abandoned the field of Nazi-looted art claims. In the end, claimants on the one hand and museums and collectors on the other suffer from a lack of uniformity or consensus on standards and from a shortage of resources for conducting the provenance research that is at the heart of addressing these claims. With no end in sight to Nazi-era art looting claims, these problems still cry out for increased attention and for trans-national solutions.
U.S. Court Refuses to Recognize a “Spoils of War” Doctrine to Allow Title to be Transferred in World War II Trophy Art Theft
First German Cultural Institution to Fail on Claim for Return in United States Court - Zugleich Besprechung von Surrogate's Court of the State of New York, County of Nassau, Urteil vom 30. März 2010 -