9th Circuit Denies Limitations Appeal by Marei Von Saher

The 9th Circuit Court of Appeals has ruled on a claim over these two 500 year-old works by Lucas Cranach the Elder, Adam and Eve.  As I wrote back in 2008, this case presents some interesting issues of timeliness.  It grapples with the question of whether states may enact more beneficial limitations restrictions, allowing certain claimants to bring actions.  The claimant, Marei Von Saher is the successor in interest to Jacques Goudstikker who bought the works in a 1931 auction in Berlin. The works remained there in Amsterdam until 1940 when the Nazis instituted a forced sale.

After the war, Desiree Goudstikker reached a settlement with the Dutch government. She received some of her husband's inventory, but did not claim another set of works because that would have meant returning the purchase price received from the Germans.

The Dutch government transferred these Cranachs to George Stroganoff-Scherbatoff, the descendant of a noble Russian family who was thought to have lost the paintings to the Bolsheviks during the Russian Revolution.  Stroganoff-Scherbatoff sold these works to the Norton Simon Museum in 1971.  The 9th Circuit held first that California's special limitations rule for works looted during the Holocauset era, Sec. 354.3 conflicts with the foreign affairs doctrine.  Though it does not conflict with Executive Branch policy via the President, it does conflict with a power reserved to the Federal government, as California created a "world-wide forum for the resolution of Holocaust restitution claims". 

As a consequence, the claim was left to general limitations principles.  In California the Discovery Rule applies.  A claimant must bring her action within three years of discovering her claim.  This means actual discovery, but also when a reasonably prudent claimant should have discovered she had a claim.  Given that the museum acquired the work in 1971, this will surely make victory a difficult proposition. 

1. Von Saher v. Norton Simon Museum of Art at Pasadena, --- F. 3d ---, 2010 WL 114959 (9th Cir. 2010). 
2. Mike Boehm, Woman seeking return of looted art from Norton Simon Museum loses appeal - latimes.com, L.A. Times, January 16, 2010.
3. Orkin v. Taylor
   

Ninth Circuit Hears Nazi Restitution Appeal

It's not often works of art are implicated by both World Wars, but these paintings present a conflict between successors of claimants from the First World War and claimants from the Second World War.

The Ninth Circuit Court of Appeals yesterday heard an appeal over these 500-year-old works of art seized by the Bolsheviks and the Nazis, Saher v. Norton Simon Art Museum, 07-5669. Pictured here are Adam and Eve by Lucas Cranach the Elder, 1520. The claimant, Marei Von Saher is the successor in interest to Jacques Goudstikker who bought the works in a 1931 auction in Berlin. The works remained there in Amsterdam until 1940 when the Nazis instituted a forced sale.

After the war, Desiree Goudstikker reached a settlement with the Dutch government. She received some of her husband's inventory, but did not claim another set of works because that would have ment returning the purchase price received from the Germans.

The Dutch government transferred those works to George Stroganoff-Scherbatoff, the heir of a noble Russian family who was thought to have lost the paintings to the Bolsheviks during the Russian Revolution.

The issue here is the timeliness of the action, which may have implications for other claimants -- including antiquities. Kenneth Ofgang, Staff Writer for Metropolitan New-Enterprise has more:

"This has nothing to do with foreign policy,” Kaye told the judges. U.S. District Judge John Walter of the Central District of California had ruled that Code of Civil Procedure Sec. 354.3 is preempted because it conflicts with federal primacy in foreign affairs. Fred A. Rowley Jr. of Munger, Tolles and Olson, representing Pasadena’s Norton Simon Art Museum and its supporting foundation said the district judge was correct and the dismissal of Marei Von Saher’s action should be affirmed. Von Saher, a Connecticut resident, sued last year following the collapse of mediation over her claim that she and her family have lawful title to Adam and Eve, a diptych painted by famed German artist Lucas Cranach the Elder in the 16th Century.Von Saher’s late husband, Eduard “Edo” Von Saher, was the son of Jacques Goudstikker, a Dutch Jew who was one of Europe’s leading art dealers in the years leading up to World War II. Goudstikker fled Holland when the Nazis invaded in 1940, but was killed in an accidental fall aboard ship. His widow, Desiree Goudstikker, and their son eventually came to the United States and became citizens, having left behind their gallery; hundreds of art works, many of them by famous painters; and valuable real estate. Young Edo Goodstikker became Edo Von Saher after his mother remarried. The parties agree that Jacques Goudstikker purchased the wood panels at an auction in Berlin in the 1930s. But while Von Saher claims that her father-in-law acquired good title from the Soviet government, the foundation charges that he knew that Cranach’s work had been wrongfully expropriated from the wealthy and powerful Stroganoff family after it fled the Russian Revolution. The museum and foundation say museum benefactor Norton Simon lawfully acquired the panels for $800,000 from Commander George Stroganoff-Scherbatoff, who renounced his hereditary title, became a U.S. citizen, and served in the Navy during World War II.

The primary issue is whether California's special limitations rule for works looted during the Holocauset era, Sec. 354.3 conflicts with an Executive Order issued by President Truman.

See here for more on Jacques Goudstikker.

Unsuccessful Nazi Spoliation Claim

From the LA Times last week, Suzanne Muchnic reports that a federal judge has dismissed a claim against Norton Simon over this work and another by Lucas Cranach the Elder.

A Los Angeles federal judge has dismissed a case that jeopardized the Norton Simon Museum's ownership of a nearly 500-year-old pair of paintings of Adam and Eve by German artist Lucas Cranach the Elder.

The action halts dueling lawsuits filed by the museum and Marei von Saher of Connecticut, the heir of a Jewish art dealer who lost the artworks to the Nazis in World War II. The museum filed a motion to dismiss the case, and a hearing was to be held Monday. But Judge John F. Walker granted the motion Thursday afternoon. He did not immediately disclose his reasons for doing so.

The museum's attorney, Luis Li of Munger, Tolles & Olson in Los Angeles, declined to comment on the ruling. Von Saher's attorney, Lawrence M. Kaye of the New York firm Herrick, Feinstein, could not be reached for comment.

Cranach's monumental paintings of life-size nudes in the Garden of Eden have been a highlight of Simon's collection since 1971, when the Los Angeles industrialist and collector bought them from George Stroganoff-Scherbatoff, an heir of a noble Russian family thought to have lost the paintings to the Bolsheviks during the Russian Revolution. But the Cranachs have a complicated history, at issue in the legal battle.

Von Saher's Dutch father-in-law, Jacques Goudstikker, bought the paintings in a 1931 auction in Berlin, billed as "Stroganoff Collection Leningrad" and staged to raise funds for Stalin's impoverished government. "Adam" and "Eve" remained in his gallery in Amsterdam until 1940, when the Nazis took over his business. Goudstikker died in a shipboard accident while fleeing the Germans, but his wife, Desiree, and son, Edward, survived, as did a list of artworks left behind.

After the war, Desiree Goudstikker settled with the Dutch government, regaining part of her husband's inventory. She did not claim another group of artworks, including the Cranachs, because she would have had to return payment received from the Germans. That settlement made it possible for Stroganoff-Scherbatoff to pursue his claim. The Dutch transferred the paintings to him in 1966.

The matter might have rested there, but as Holocaust restitution escalated, the Dutch reconsidered claims against Nazi loot, and scholars questioned long-accepted accounts of the Cranachs' Russian history.

There is no doubt that the paintings were sold in the Stroganoff sale, but some researchers think they were among confiscated goods from other collections, included in the auction to give the other items a "noble" provenance and disguise that they actually were being sold by the government.

No evidence that the paintings did or did not belong to the Stroganoffs has been found, but a document has come to light stating that they were in a church and other buildings in Kiev, the capital of what is now Ukraine, a few years before the auction. No one knows how they got there.

Von Saher, the widow of the Goudstikkers' son, has spent the last nine years trying to retrieve artworks owned by her husband's parents.

Last year, the Dutch government gave her 202 works that had been housed in Dutch museums, stating that the Goudstikker case had been handled properly in legal terms but that it had been reconsidered on moral grounds.

She learned that the Cranachs were at the Simon museum in 2000, and her attorney contacted the museum the following year.

Throughout the lengthy period of mediation and legal proceedings, Von Saher has contended that the Simon cannot have title to the paintings because they are stolen goods. The museum has argued that it is the rightful owner of the Cranachs, whether they belonged to the Stroganoffs or not, because the family's heir acquired good title to them under Dutch law, and in any event, California's three-year statute of limitations to challenge the Simon's purchase has long since passed.

In its motion to dismiss the case, the Simon argued that a California law extending the statute of limitations for heirs of Holocaust victims is unconstitutional because it wrongfully empowers the state to remedy war injuries, which is a duty of the federal government.

I haven't had a chance to track down the actual judgment. I'm back in the States at the moment, preparing myself for the AALS hiring conference in Washington D.C. later this week. There appears to be an error in Muchnic's understanding of the relevant California limitations rules. Though the limit is indeed three years, that period does not begin to start running until the claimant discovers, or by exercising reasonable efforts should have discovered the present owner of the object. Since the work has been on display since 1971, a dismissal of the claim was a likely result.

But in any event, California has extended the time with which claimants can bring these kinds of claims for nazi spoliated artworks until 2010 I believe, though I'd have to check that. I've not read anything questioning the constitutionality of that, though it appears to be an interesting question.

Massive Restitution Auction

Carl Vogel of the New York Times discusses the planned 3-stage auction of a portion of a group of 170 old master paintings recently returned to the heirs of Jacques Goudstikker. Over at the ArtLaw blog, Donn Zaretsky has more.

Goudstikker was a prominent art dealer who quickly fled Amsterdam in 1940. His successors, Mrs. von Saher and her two daughters, all currently Connecticut residents, are planning an international exhibition of many of the works, including some which will not be part of the auction. Last year's settlement with the Dutch government marked the culmination of an 8-year legal battle. The three auctions will be in April in New York, in July in London, and finally in November in Amsterdam. One work which could fetch between $3-5 million is this painting, Ferry Boat With Cattle on the River Vecht Near Nijenrode by Salomon van Ruysdael.

One of the heirs, Charlene von Saher said the traveling exhibition would reveal to the world "a historical injustice put right." Certainly, Goudstikker lost his collection of art, and the restitution may be correcting a historical wrong. Make no mistake though, the 3 heirs of Goudstikker, their legal counsel, and Christie's all stand to make a great deal of money. Money is at the heart of restitution, not righting historical wrongs. Consider the recent decision of a Dutch court to award Roelof van Holthe tot Echteen, a lawyer for the 3 heirs, a $10.4 million bank guarantee for his services in working for the restitution.

I notice that in the US, Lawrence Kaye represents von Saher and her two daughters in the dispute. Kaye, along with Howard Spiegler operate a prominent art restitution practice in New York. The two have become celebrities of sorts. I was contacted a couple of weeks ago by Kelly Crow of the Wall Street Journal regarding the reputation of the two in the legal and scholarly community. I'm afraid I was not able to offer her too much for her story. The two have published quite a bit, and have been part of some of the most important art and antiquities cases in recent years. If you want to initiate a restitution action, they are the lawyers to call.

However, I don't really think that the law looks at individuals as champions of a cause. They are partisan representatives for their client. Their duty is to advocate zealously for their client. Sometimes this might put them on the right side, others it may put them in more objectionable territory. Perhaps it is just my view on this, but I do not consider them "heroes" as such. That said, I would jump at the chance to join their restitution practice after I complete my thesis.


I am of two minds about restitution litigation. On the one hand, I think we should certainly endorse a practice which remedies past historical injustices, and Nazi spoliation is certainly a grave injustice. However, restitution is not always a positive development. I discussed the Schiele litigation earlier this week, which is a very sad situation. Also, these works were displayed at museums in Amsterdam accessible to the public. Is there not a value in having the works displayed there? Also, what is the rationale for returning works from WWII, but not earlier conflicts. Why should the Louvre not be emptied of all the works looted by Napoleon?