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.
by MICHAEL KIRKLAND
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artworks during WWII must engage in detailed investigations, often in several countries, obtain translations of foreign historical documents and seek the assistance of legal and historical experts, among other things, all of which may take many years to complete."
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.
~~~~~~~~~~~~~~~~~
George STROGANOFF-SCHERBATOFF, Plaintiff,
v.
Henry H. WELDON, Defendant.
George STROGANOFF-SCHERBATOFF, Plaintiff,
v.
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.
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.
Footnotes
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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