Wednesday, March 28, 2012

Bolshevik Perfidy and Nazi Greed?

Less than two years ago, much appeared in the news about certain works of art formerly owned by members of the Russian nobility prior to the revolution in which the tsar and his family was overthrown by the Bolsheviks. However, much was left out by the final action of that litigation which occurred in 2010. To fully understand what happened requires that we go back another 35 years to a court case in 1976--to a case which will follow the more recent article printed below.

There was also an earlier lawsuit in 1966, reported in the International Law Reports here at page 72 of Stroganoff-Scherbatoff v. Bensimon. But the real question in my mind is how these Scherbatoffs were related, if at all, to the wife of Max Edward Clark--the former Princess Gali Scherbatoff.

UPI NewsTrack Oct 10, 2010

WASHINGTON, Oct. 10 (UPI) -- How many years, how many laws or court rulings, how many regulations does it take to wash the tragedy from a work of art? What makes an artwork -- stolen from desperate people, part of what would become the largest claim of restitution involving Nazi theft -- clean enough to be kept in a museum? The U.S. Supreme Court may have a try at finding out.

The focus of a case brought before the high court this term involves the delicate balance among state, federal and foreign governments, and more specifically a California law that extends the statute of limitations for court actions against museums and galleries to recover Nazi-looted art. The case is also a detective story of sorts, with plenty of byzantine twists and turns and a whiff of Bolshevik perfidy and Nazi greed.

"The California Legislature has recognized the unique nature of claims for the return of artworks looted during World War II ... and the roadblocks that make pursuing these claims so difficult," a petition in the case says. "Those who seek legal redress for the theft of artworks during WWII must engage in detailed investigations, often in several countries, obtain translations of foreign historical documents and seek the assistance of legal and historical experts, among other things, all of which may take many years to complete."
Trying to recover looted art "also inevitably forces victims and their heirs to relive the horrors associated with that era," the petition adds. Families or heirs "are often thwarted in their efforts to regain their property because present day possessors resort to statutes of limitations and other technical defenses despite undeniable proof of an earlier Nazi confiscation."

The 2002 California law, unanimously enacted by the Legislature, extends "the statute of limitations for claims for the return of Nazi-looted artworks brought in California against museums or galleries," the petition said. The new law "prevents museums and galleries -- which should know the importance of provenance and are in the best position to discover whether an artwork they are acquiring is among the thousands looted during WWII -- from taking advantage of a technical defense to a meritorious claim for the return of stolen artworks."

Lucas Cranach the Elder

In other words, simply citing a statute of limitations doesn't protect the museum. The art in question is by Lucas Cranach the Elder, a 16th century German Renaissance painter and print-maker, known for his portraits of Martin Luther and other Reformation figures. But he wasn't above doing the occasional nude. Cranach's life-size "Adam" and "Eve" -- appraised at $24 million for the pair -- are on display at the Norton Simon Museum of Art at Pasadena, Calif.

Jacques Goudstikker
Who owns the works is the subject of debate. So is the identity of the original victim, a noble Russian family or a world-renowned Jewish art dealer in pre-war Amsterdam. Marei von Saher, a Greenwich, Conn., resident and "the sole living heir of the noted Jewish art dealer, Jacques Goudstikker," says the Cranachs were part of the works at Goudstikker's gallery. Von Saher is Goudstikker's daughter-in-law.

After the Nazis invaded the Netherlands in 1940, only 35,000 of 140,000 Dutch Jews survived the war. Reichsmarschall Hermann Goering looted the Goudstikker gallery of more than 1,000 pieces of art, including the Cranachs, which he wanted for his personal collection. Actually, Goering put low-level employees in charge of the massive Goudstikker collection, then forced them to sell at ridiculously low prices.

After the invasion, the Jewish Goudstikker, 43, fled the country, and died after he broke his neck in a fall aboard a ship crossing the English Channel. After the war, the Cranachs and the other artworks were recovered by Allied troops, and in accordance with policy, turned over to the Netherlands with the expectation they would be returned to the original owner. Von Saher's petition said Goudstikker's widow did receive some works, but the Dutch government retained the Cranachs and other art looted by Goering. 

Georges Stroganoff-Scherbatoff

Meanwhile, Georges Stroganoff-Scherbatoff appeared in 1961 to say the art actually belonged to his noble Russian family. The Dutch sold the art to Stroganoff in 1966, Von Saher's petition said.
"In fact, the Cranachs came from the Church of the Holy Trinity in Kiev, and Goudstikker purchased them at an auction in 1931," the petition said. "They had never been part of the Stroganoff family art collection."
The Norton Simon Museum of Art at Pasadena acquired the Cranachs from Stroganoff in the early 1970s, where von Saher said she discovered them on or about November 2000. At that point, von Saher said she wanted the Cranachs back, but the museum said no. Meanwhile, the Dutch government apparently had a change of heart in 2001 and decided to return 200 priceless works of art to von Saher.

The museum tells a slightly different story of the Cranachs' provenance: 
"The Soviets" -- needing hard currency -- "sold the Cranachs in 1931 as part of an auction titled 'the Stroganoff Collection,' which featured artworks (confiscated after 1917) from the noble Stroganoff house," the museum said in its own brief. The Stroganoff family fled the revolution and all their Russian property was confiscated. "Over the Stroganoff family's protest, the Cranachs were purchased by ... a prominent Dutch art dealer named Jacques Goudstikker."
Under protest, Goudstikker's widow chose not to seek the return of the artworks, the museum said, "which would have required her to return the money paid by Goering for those works" in the forced sale. "The time to file a claim under Dutch law elapsed in 1951."
The Dutch government transferred the Cranachs to Georges Stroganoff-Scherbatoff as part of a settlement that also included money. Von Saher filed suit in federal court in Los Angeles in May 2007 to recover the Cranachs from the Pasadena museum, but a judge dismissed the suit, holding the California law extending the statute of limitations to make the claim "intrudes on the federal government's exclusive power to make and resolve war, including the procedure for resolving war claims," and is therefore unconstitutional. Without the new law, von Saher had only three years to make her claim under California law after discovering the Cranachs in the museum.

Holocaust restitution 

The 9th U.S. Circuit Court of Appeals also ruled for the museum, saying the California law was designed to create "a worldwide forum for the resolution of Holocaust restitution claims," which was not a "traditional state responsibility." Since California was not exercising a traditional state function, the court said, the state law was pre-empted by the foreign affairs power reserved to the federal government because the intent of the state statute was to right wartime wrongs.

In her petition to the U.S. Supreme Court, von Saher said the appeals court "misconstrued" Supreme Court precedent, particularly in 2003's American Insurance Association vs. Garamendi. The Garamendi case came about because the Nazis "confiscated the value or proceeds of many Jewish life insurance policies issued before and during the Second World War," the Supreme Court said in its ruling. "After the war, even a policy that had escaped confiscation was likely to be dishonored, whether because insurers denied its existence or claimed it had lapsed from unpaid premiums, or because the German government would not provide heirs with documentation of the policyholder's death."

As in the artworks case, California acted, its Legislature passing the Holocaust Victim Insurance Relief Act of 1999. The state act required any insurer doing business in the state to disclose information about all policies sold in Europe from 1920 to 1945 by the company or anyone "related" to it. Violations of the act meant loss of an insurer's state business license. After the act became law, California issued administrative subpoenas against several subsidiaries of European insurance companies that were already cooperating with an international commission on Holocaust insurance claims. The federal government then warned California its new law interfered with the work of that commission.

Eventually, the U.S. Supreme Court ruled the California Holocaust insurance law "interferes with the president's conduct of the nation's foreign policy and is therefore pre-empted."

Von Saher's lawyers argue the California law extending the statute of limitations for the recovery of looted art, unlike the state law in Garamendi, does not conflict with any federal law or international treaty, and the 9th Circuit's ruling in the Cranach case unconstitutionally extends federal pre-emption.

Von Saher is no longer alone in her case. A number of organizations have filed friend-of-the-court briefs on her behalf, including the Simon Wiesenthal Center and Bet Tzedek, "The House of Justice," a Southern California non-profit legal service that says it has represented more than 800 Holocaust survivors or their families. California also has filed a brief supporting her. All these briefs, of course, presumably were read by the Supreme Court justices this summer, including the briefs filed by von Saher and the museum. The high court could take several actions: rule summarily for either side without hearing argument, agree to hear argument before any ruling or simply refuse to review the case.

For the moment, the justices are asking the U.S. solicitor general's office for advice. At the start of the new term on the first Monday in October, they asked the administration lawyers for an opinion on what should be done with the case. The solicitor general's office should reply with an opinion within a couple of months.


Henry H. WELDON, Defendant. 

Charles B. WRIGHTSMAN and Jayne Wrightsman, Defendants

The opinion of the court was delivered by: BONSAL, May 18, 1976

 BONSAL, District Judge. 

Plaintiff George Stroganoff-Scherbatoff commenced these actions alleging conversion of certain works of art by defendants Henry H. Weldon, Charles B. Wrightsman and Jayne Wrightsman. Specifically, in a complaint filed February 6, 1974, plaintiff alleged that Henry H. Weldon "converted to his own use a painting known as Portrait of Antoine Triest, Bishop of Ghent, ["Triest Portrait"], by Sir Anthony Van Dyck, of the value of $50,000, the property of plaintiff."
Diderot bust
Then, in another complaint filed December 31, 1974, plaintiff alleged that Charles B. Wrightsman and Jayne Wrightsman converted to their own use a bust of Diderot by Houdon, described in Catalogue 2043 of Rudolph Lepke's Kunst-Auctions-Hause, No. 225 with a property value of $350,000. A subsequent suit, 75 Civ. 3174, was brought against the Metropolitan Museum of Art, the present owner of the Diderot bust, which was subsequently consolidated with the Wrightsman case by Court order dated September 30, 1975. 1

Metropolitan Museum of Art
Defendants now move pursuant to Fed.R.Civ.P. 56(b) for summary judgment in their favor. In support of his motion, defendant Weldon has submitted his own affidavit; the affidavit of his attorney, Harry E. Youtt, Esq.; the affidavit of Robert L. Manning, the Director-Curator of the Finch College Museum of Art; portions of the "Sammlung Stroganoff" or auction catalogue prepared for the auction in Berlin, May 12-13, 1931; and portions of the Catalogue de la Galerie des Tableaux of the Imperial Hermitage, St. Petersburg, Russia. 

Defendants Wrightsman have submitted an affidavit by their attorney, Betty J. Pearce, Esq.; several documents including
  • "The Stroganoff Palace-Museum--A Brief Guide, St. Petersburg, 1922"; 
  • excerpts from the "Sammlung Stroganoff" decrees of the All Russian Central Executive Committee and of the Council of People's Commissars; 
  • "Eighteenth Century French Art in the Stroganov Collection"; 
  • affidavits of the translators of these documents; documents on Soviet law and the Soviet Constitution; and
  •  the affidavit of Charles B. Wrightsman. 
In opposition to these motions, plaintiff has submitted his own affidavit and a supplemental affidavit of his attorney, Lyman Stansky, Esq. 

Before deciding these motions for summary judgment, the Court, in a Memorandum to Counsel, gave the parties ". . . an opportunity to submit further briefs on the Act of State and Statute of Limitations points in light of Princess Paley Olga v. Weisz, [1929] 1 K.B. 718; Menzel v. List, 22 A.D.2d 647, 253 N.Y.S.2d 43 (1964); and Menzel v. List, 49 Misc.2d 300, 267 N.Y.S.2d 804 (1966)." Supplemental memoranda of law and additional affidavits were subsequently filed by all parties. 

Triest Portrait
It appears undisputed that both the Triest Portrait and the Diderot bust were sold in Berlin in 1931 at the Lepke Kunst-Auctions-Hause (hereinafter "Lepke Auction") by order of the Handelsvertretung or Trade Consulate of the U.S.S.R. 2

The Triest Portrait was purchased by the Frank T. Sabin Gallery in London which later sold it to the Alfred Brod Gallery, Ltd. in London. In 1963, defendant Weldon acquired the painting from the Brod Gallery and remains the present owner. 

It is unclear from the record who purchased the Diderot bust at the Lepke Auction; however, Charles B. Wrightsman later acquired the bust in June, 1965 from French & Company, Inc., a New York art dealer, and later donated it to the Metropolitan Museum of Art on or about November 14, 1974. 

Plaintiff alleges that he is the direct descendant of Count Alexander Sergevitch Stroganoff, the original owner of both works of art, and that he is the rightful owner of these works of art by reason of familial succession. Plaintiff contends that the auction catalogue for the Lepke Auction described these works as part of the Stroganoff Collection. ("Sammlung Stroganoff".) 

Defendant Weldon contends that the auction catalogue does not support plaintiff's contentions that the Triest Portrait was part of the Stroganoff Collection. Rather, Weldon contends that the Portrait was part of the collection of the Imperial Hermitage Museum in St. Petersburg, Russia. 3

Moreover, defendant Weldon contends that even if plaintiff can prove ownership of the painting by familial succession, the Court is barred from granting any relief by reason of the Act of State Doctrine.  Defendants Wrightsman also contend that the Act of State Doctrine bars any relief. 

The Act of State Doctrine

The Act of State Doctrine requires courts of this country to refrain from independent examination of the validity of a taking of property by a sovereign state where 1) the foreign government is recognized by the United States at the time of the lawsuit, and 2) the taking of the property by the foreign sovereign occurred within its own territorial boundaries. 

In Underhill v. Hernandez, 168 U.S. 250, 18 S. Ct. 83, 42 L. Ed. 456 (1897), plaintiff brought suit against the defendant, the commander of a revolutionary army in Venezuela, for damages caused by defendant's refusal to issue a passport and for alleged assaults and affronts by defendant's soldiers in Venezuela. Since the United States had recognized the defendant's revolutionary government as the legitimate government of Venezuela, the Court held:
"Every sovereign state is bound to respect the independence of every other sovereign state, and the courts of one country will not sit in judgment on the acts of the government of another, done within its own territory." Id. at 252, 18 S. Ct. at 84.
Then, in Oetjen v. Central Leather Co., 246 U.S. 297, 38 S. Ct. 309, 62 L. Ed. 726 (1918), hides were seized in Mexico from a Mexican citizen by General Villa, acting on behalf of General Carranza, and were sold in Mexico to a Texas corporation which shipped them to the United States where they were sold to defendant. Plaintiff claimed title to the hides as assignee of the Mexican citizen. Taking note of the fact that the United States had recognized the Government of Carranza as the de facto government of Mexico in 1915, and as the de jure government in 1917, the Court denied plaintiff's request for relief and held:
"Plainly this was the action, in Mexico, of the legitimate Mexican government when dealing with a Mexican citizen, and, as we have seen, for the soundest reasons, and upon repeated decisions of this court such action is not subject to re-examination and modification by the courts of this country." Id. at 303, 38 S. Ct. at 311.
The Act of State Doctrine was again applied in Banco Nacional de Cuba v. Sabbatino, 376 U.S. 398, 84 S. Ct. 923, 11 L. Ed. 2d 804 (1964), a case involving the expropriation by the Cuban Government of property located in Cuba but owned principally by American nationals. There, the Court held:
". . . the Judicial Branch will not examine the validity of a taking of property within its own territory by a foreign sovereign government, extant and recognized by this country at the time of suit, in the absence of a treaty or other unambiguous agreement regarding controlling legal principles, even if the complaint alleges that the taking violates customary international law." Id. at 428, 84 S. Ct. at 940.
Here, the record shows that the works of art, whether in the Stroganoff Palace or in the Imperial Hermitage Museum, were appropriated by the Soviet Government under either Decree No. 111 of the Council of People's Commissars published on March 5, 1921, which nationalized all movable property of citizens who had fled the Soviet Union, 4 or Decree No. 245 of March 8, 1923, promulgated by the All Russian Central Executive Committee and the Council of People's Commissars, which nationalized property housed in State Museums. In addition, at the time of the Lepke Auction in Berlin, plaintiff's mother, Princess Stroganoff-Scherbatoff, wrote a public letter of protest stating that:
"This collection remains entirely my property. The Soviet republic has taken possession of this collection in a way that sets at defiance every principle of international law." (Emphasis added.) New York Herald Tribune, May 13, 1931, at 15.
Portrait of Stroganoff
While plaintiff contends that the "taking" did not occur within the territory of the Soviet Union but in Berlin at the Lepke Auction and, under such circumstances, the Act of State Doctrine is inapplicable, the record indicates that the works of art were appropriated in Russia, prior to the Lepke Auction, and were transported to Berlin by the Soviet Government solely for the purpose of the public sale.

 In Princess Paley Olga v. Weisz, [1929] 1 K.B. 718, the British Court of Appeal was faced with a case involving similar facts. There, a Russian refugee noble, Princess Paley Olga, instituted an action in the British courts to recover certain furniture and art objects that had been in the Paley Palace, near St. Petersburg, and which were sold by the Soviet Government to the defendant in 1928. Relying in part on Decree No. 111 of the Council of People's Commissars published on March 5, 1921, and Decree No. 245 promulgated by the All Russian Central Executive Committee and of the Council of People's Commissars in March 1923, the defendant Weisz contended that the articles in question had ceased to be the property of the plaintiff and were in the possession of the Soviet Government as public property. Since that Government was the Government of a foreign sovereign State, and had been recognized as such by the English Government in 1924, defendant contended that the plaintiff could not dispute the validity of the appropriation of the articles by the Soviet Government in the British courts. In affirming the lower court's decision that plaintiff's action must fail, the Court of Appeal (Scrutton, L. J.) held:
"Our Government has recognized the present Russian Government as the de jure Government of Russia, and our Courts are bound to give effect to the laws and acts of that Government so far as they relate to property within that jurisdiction when it was affected by those laws and acts." Id. at 725.
 Here it appears that the Triest Portrait and the Diderot bust were transported to Berlin for public sale in May 1931 at the direction of the Soviet Government. The Soviet Government had been recognized by the United States as the de jure government of Russia in 1933. Whether the works of art had been appropriated under Decree No. 111 of March 5, 1921 or Decree No. 245 of March 8, 1923 appears to be immaterial. The sale of the Stroganoff Collection was held by order of the Handelsvertretung and as such was carried out under the direction and with the consent of the Soviet Government. While the actual sale of the works of art occurred in Berlin, the property had been seized in Russia by the Soviet Government. 

Unlike the situation in Menzel v. List, 49 Misc.2d 300, 267 N.Y.S.2d 804 (1966), where the taking was by an organ of the Nazi Party, not a sovereign state, and the Act of State Doctrine was held inapplicable, here, the Soviet Government, by official decrees of its political organs, had acquired the works of art in Russia prior to their public sale in Berlin in 1931. Moreover, in Menzel v. List, the appropriation of the painting was in Belgium and the Government of the Kingdom of Belgium, although in exile at the time, was still the recognized government of Belgium. Here, the appropriation was by the Soviet Union and occurred within the territorial boundaries of the Soviet Union. 

 Thus, it seems clear that, on this record, plaintiff is precluded from recovery by reason of the Act of State Doctrine. Banco Nacional de Cuba v. Sabbatino, supra; see Princess Paley Olga v. Weisz, supra. In view of the foregoing, the Court does not reach the statute of limitations issue. 5

Accordingly, defendants' motions for summary judgment are granted.

It is so ordered.


1. On February 2, 1974, plaintiff commenced another action, 74 Civ. 625, alleging conversion by defendant Charles Wrightsman of a bust of Voltaire by Houdon. Subsequently, a suit was brought against the Metropolitan Museum of Art, 74 Civ. 3809, for the same cause of action. Both actions were consolidated for purposes of a joint trial by Order dated April 26, 1976.

2. See affidavit of Johann Wille dated December 5, 1975.

3. See affidavit of Robert L. Manning dated February 7, 1975, attached to defendant Weldon's Motion for Summary Judgment.

4. Plaintiff denies that Count Alexander Sergevitch Stroganoff fled the Soviet Union in 1919 and thus disputes the applicability of Decree No. 111 of March 5, 1921 to the facts of this case.

5. Plaintiff has brought these suits for conversion of works of art. Under the applicable New York statute, New York Civil Practice Law and Rules ("CPLR") § 214(3) (McKinney 1972), "an action to recover a chattel or damages for the taking or detaining of a chattel . . . must be commenced within three years." (Section 214(3) of the CPLR, effective September 1, 1963, replaced former Section 48(4) of the Civil Practice Act which provided a six-year statute of limitations.)

   Moreover, under New York CPLR § 206(a), a demand is necessary before a person is entitled to bring an action in conversion. That statute provides, in part:

". . . where a demand is necessary to entitle a person to commence an action, the time within which the action must be commenced shall be computed from the time when the right to make the demand is complete."
   Here, it would appear that the right of plaintiff's mother to make the demand was complete in 1931 when the works of art were sold at the Lepke Auction in Berlin. Under the New York statute of limitations, it would appear that the time for commencing an action in conversion had already run at the time of Princess Stroganoff-Scherbatoff's death in 1944.

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