September 12, 2018
Heirs of prior owner of Matisse’s Portrait of Greta Moll claim rebuffed
The National Gallery is trumpetting this decision, but it seems more down to legal technicalities than any judgement of innocence or otherwise
Legal action in restitution cases take many forms. One case that has interested me in the past is that of Agudas Chasidei Chabad v. Russian Federation, et al. As I mentioned at the time, it had commonalities with a potential case I had heard presented relating to the same US court and the Parthenon Marbles.
When trying a case in a foreign court, there are many pitfalls to be aware of, not least the potential difficulties of enforcing any judgement. Another important aspect however in the US courts is that of the Foreign Sovereign Immunities Act (FSIA). I have heard reasons why both the above cases met (or would meet) the conditions set by the Act – but it is worth bearing in mind that other cases have not been so lucky.
This news story relates to the heirs of a painting by Matisse, which was given by the owners (in Berlin) to someone (in Switzerland) for safekeeping in the chaotic aftermath of World War Two. This presents an interesting case (from a British point of view), in that it neatly avoids the (necessarily specific, but thus rather blunt) definitions of the Nazi Era used the in UK’s Holocaust (Stolen Art) Restitution Bill. Of course, as this case was tried in a foreign jurisdiction, the aforementioned act would not apply in this case anyway.
The person in Switzerland entrusted with looking after the artwork then sold it and kept the proceeds. The painting eventually ended up in the UK’s National Gallery.
In this case, the Federal Appeals court in New York has rejected the claim, due to the fact that it does not meet the conditions of the FSIA, because the painting was taken by an individual rather than a state.
That said, this is a technical argument that means that the case can not proceed. It in no way endorses (or not) the due diligence by the National Gallery in checking the origins of a work by a well known artist (which has echoes of the Feldmann paintings about it). Possibly another case brought under a different jurisdiction might find differently. With the Feldmann Paintings, while the British Museum claimed that they were acquired in good faith, it now argued that it felt there was an overwhelming moral case for their return. Perhaps the National Gallery should follow suit?
Matisse’s Portrait of Greta Moll (1908)
From:
The Art Newspaper
Court rejects claim to Matisse owned by National Gallery
Rebuffing heirs, an appeals panel in New York says the court lacks jurisdiction
Nancy Kenney
11th September 2018 18:26 GMTA federal appeals court in New York has rejected a claim to a 1908 Matisse painting owned by the National Gallery in London by three grandchildren of the muse portrayed in the work.
In demanding the work’s return, the heirs had argued that the painting, Portrait of Greta Moll, was illegally sold by a former art student to whom the painting had been entrusted for safekeeping in the aftermath of the Second World War. The portrait changed hands several times before it was acquired by the National Gallery in 1979.
In a unanimous ruling on Monday (10 September), the Second Circuit Court of Appeals affirmed a lower-court decision that the National Gallery and Britain were immune from the jurisdiction of US courts because the lawsuit did not meet the conditions set by the Foreign Sovereign Immunities Act. “The alleged taking of the painting was committed by a private actor” not “a sovereign”, the panel of judges said. “The National Gallery’s refusal to compensate appellants for that taking after the fact does not provide a basis for jurisdiction over a foreign sovereign and its instrumentality.” The appeals court therefore backed the district court’s decision to dismiss based on a “lack of subject matter jurisdiction”.The painting was originally purchased from Matisse by Oskar Moll, the husband of Margarete Moll, also known as Greta, the woman portrayed in the painting, and taken to Germany. The couple were living in Berlin in 1946 when, fearing the upheaval of the postwar partition of the city, they decided to send the portrait abroad to protect it from looting.
Oskar Moll died in 1947, and Margarete Moll entrusted the painting to a former student of his who promised to take it to Switzerland for safekeeping. Upon arriving there, however, the onetime student sold it instead and kept the proceeds. Margarete Moll moved to Wales, and the painting then went through a series of owners, including the New York gallery Knoedler & Co and the Lefevre Gallery of London, before its purchase by the National Gallery in 1979.
According to court documents, the three grandchildren—Oliver Williams, Margarete Green and Iris Filmer—first pressed their case for the painting’s recovery in 2011, but the National Gallery declined to return it. In 2015, they sought a review by the Spoliation Advisory Panel, a British government body investigating Holocaust-era art claims, but the government said the panel lacked jurisdiction because the Nazi era ended in 1945, two years before the portrait was sold in Switzerland. The heirs then filed suit against the National Gallery and the UK in the US, and the US District Court for the Southern District of New York rejected their claim last year, leading to the appeal.
Asked if the grandchildren planned to further appeal the decision, David J. Rowland, the New York lawyer representing them, said: “That’s all being reviewed.” He declined to comment further.
The National Gallery welcomed the decision. In a statement, the museum emphasised that it bought the portrait “in good faith” and that the case “does not concern Nazi looted art”. It added that the Moll family had known of the painting’s whereabouts for decades before arguing for its return.
“We are proud to have Matisse’s superb ‘Portrait of Greta Moll’ on show to the public in Trafalgar Square,” said the National Gallery’s director, Gabriele Finaldi. “It is there for all to admire and enjoy.”
- SCOTUS rules against Norton Simon Museum looted art apeal : January 22, 2015
- Greek bid to reject Sotheby’s lawsuit over bronze horse rejected : June 24, 2019
- US courts may limit Nazi loot claims : September 20, 2006
- US bill aims to protect looted art while on loan to US museums : March 26, 2012
- Is not knowing an artefact was Nazi loot an excuse to retain it? : January 28, 2016
- Netherlands Museums Association sees return of Nazi loot as “moral obligation” : October 30, 2013
- US court rejects Iranian antiquities seizure : November 16, 2011
- Export bans on important works of art : February 22, 2011
Matthew Taylor said,
09.12.18 at 11:29 pm
@VardasGeorge What are your thoughts on the FSIA applicability to the Parthenon Marbles? I’ve heard that… https://t.co/FhLAXHBH9l
George Vardas said,
09.14.18 at 6:49 am
The decision of the US Court of Appeals Second Circuit in the case of Matisse painting of Greta Moll against the National Gallery of London is interesting: http://www.ca2.uscourts.gov/decisions/isysquery/5a402730-f3db-4b9f-8b53-53e0414f30d8/1/doc/17-3253_so.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/5a402730-f3db-4b9f-8b53-53e0414f30d8/1/hilite/
The Court of Appeal upheld the original decision of the US District Court in New York rejecting the claim brought against the National Gallery by the descendants of the original owners of the work. However, it did so on a jurisdictional point, namely, that for a plaintiff to succeed in a claim against a foreign instrumentality it had to show that the property was taken in violation of international law so as to attract one of the exceptions to the immunities conferred by the Foreign Sovereign Immunities Act (FSIA). In this case, the painting had been given to a relative by the original owner in Berlin for safekeeping just after the war had finished but in 1947 that relative wrongfully sold the painting and kept the proceeds. The painting then changed hands a number of times before being acquired by the National Gallery in 1979. The Court of Appeals held that “taken” refers to acts of a sovereign state, not a private enterprise, that deprive the plaintiff of property without adequate compensation and in this case the taking was by a “private actor”. The appeal was therefore dismissed on this technical jurisdictional point.
The original decision of the US District Court of New York (which was ultimately upheld on the jurisdictional point about whether the painting was “taken”) is perhaps even more illuminating. See https://www.courtlistener.com/recap/gov.uscourts.nysd.462390/gov.uscourts.nysd.462390.52.0.pdf
In dealing with the ultimate appeal point of whether the painting had been “taken”, the court at first instance found that the alleged illegal conversion of the painting in the immediate postwar years was not “taking” referred to in the exception under the FSIA because it was a private individual who had illegally converted the painting and as a result no sovereign state was responsible for the illegal conversion of the painting. The fact that the National Gallery continues to hold the painting and refuses requests to return the painting did not constitute an act of taking.
The US District Court noted that the plaintiffs’ initial application was made to the UK Spoliation Advisory Panel which found that it lacked jurisdiction because it can only consider Holocaust era art claims and this painting had been taken after 1945.
In order to establish jurisdiction in a US court, the plaintiffs attempted to invoke the expropriation exception of the FSIA and to do so successfully they also had to demonstrate that, since the painting was not in the US, that the National Gallery as an agency or instrumentality of the UK is engaged in a commercial activity in the United States.
In this case, the plaintiffs argued that the National Gallery has a commercial connection with the US in that, specifically, there was an American Friends of the National Gallery operating in the United States; images of the painting had been published in the US via catalogues and other means and, finally, there had been a loan of the painting from the National Gallery to a museum in New York.
The US District Court found that the plaintiffs’ action was not based or founded upon any of these alleged acts and that the operation of the American Friends, the sale of catalogues containing images of the painting and the loan of the painting to New York museum were wholly irrelevant to the core issue in the case, namely, whether the plaintiffs could establish a superior title to the painting over the National Gallery. Similarly, the claim that the National Gallery continues to refuse to return the painting did not assist the plaintiffs. The court held that the alleged harmful conduct, namely the retaining of the painting in derogation of the plaintiffs’ request, was occurring in London where the National Gallery keeps the painting. Accordingly, the District Court concluded that the commercial activity exception does not apply to establish US jurisdiction over the National Gallery in Great Britain.
Finally, and although this was also not the subject of the Court of Appeal’s determination, the District Court at first instance observed that the plaintiffs had not diligently pursued their rights to the painting even though it was claimed that they had been aware as early as the late 1970s and early 1980s that the National Gallery owned the painting and therefore the court concluded that the claims were untimely and statute barred. The court also found that the plaintiffs’ claims were barred by the doctrine of laches which is based on the maxim that equity aids the vigilant, not those who sleep on their rights.
Although some American lawyers have previously suggested an action against the British Museum and the UK Government in the United States based on the exception provisions to the FSIA over the “Elgin Marbles”, the Greek state was never really interested in participating in what it regarded as forum shopping. And this decision seems to bear out the inherent problems in bringing a claim in the US courts under the FSIA although, arguably, the Parthenon Sculptures would be in a different category altogether because it would be argued that they were taken in violation of international law by Lord Elgin, an ambassador or diplomat representing the British government who either failed to obtain the proper legal permission of the Ottoman authorities to remove the sculptures or, in the alternative, that such authority as he may have received was so tainted by illegal acts of bribery and corruption as to vitiate any such permission. However, that may well be academic if the District Court’s strict interpretation of the commercial activity exception in this case was applied to the British Museum in terms of its commercial presence in the US.
Finally, it is significant that according to the plaintiffs’ attorney the National Gallery opposed the application before the US courts on the basis that they were the wrong place to hear this matter but at the same time the National Gallery had consistently opposed that any British forum hear the claim on its merits and asserted that the operation of the Museums and Galleries Act 1992 was a bar to recovery. Section 4(5) of that Act relevantly provides that the National Gallery Board shall not dispose of a relevant object comprised in their collection unless effectively it has become useless by reason of its physical appearance. Dubious provenance simply does not rate.
The campaign for the reunification of the Parthenon Sculptures is of course met by a combination of the UK Government’s argument that it is a matter for the British Museum Trustees and by the British Museum’s claim that it is prevented by its own enabling legislation (the British Museum Act) from deaccessioning. An imperial Catch-22.
Litigation can be uncertain as the FSIA action has shown. However, it is also self-evident that diplomacy per se will not succeed whist the British Museum continues to stonewall and without a UK Government prepared to commit to serious and meaningful negotiations for a mediated resolution. But then, there is always the possibility as explored by Geoffrey Robertson at al of seeking an advisory opinion from the International Court of Justice that could act as a circuit-breaker. But that is another story.
Matthew said,
09.14.18 at 9:04 pm
Thank you for this comment George – more detailed than I could have hoped for in clarifying some of my own queries about this case.
It’s interesting to see that the National Gallery falls back on a similar defence to the British Museum (we couldn’t return things even if we wanted to) rather than engaging with the argument.