On 9 August 2016, a federal judge in the U.S. District Court of California summarily dismissed a lawsuit against the Norton Simon Museum brought by the heirs of a Dutch dealer, Jacques Goudstikker, to recover two sixteenth century oil paintings, entitled “Adam” and “Eve” by Lucas Cranach the Elder.[i] Granting the Museum’s motion for summary judgment, the court held that the Museum is entitled to keep the Cranachs because the Dutch government “acquired ownership of the Cranachs” and, as a result, their subsequent transfers to George Stroganoff and then to the Museum were valid, with the Museum currently holding good legal title to them.[ii]
The near-decade long litigation was commenced by the Goudstikker heirs in May 2007, when they brought an action in California for the recovery of the Cranachs. It is considered one of the most high-profile and important claims to Nazi-looted art currently before the courts anywhere in the world. This is because the case has been restored having been twice dismissed before, and it has clarified a number of legal issues pertaining to limitation periods and proceedings brought by foreign states in the US courts. The latest decision also points to the Courts finding themselves unable to take moral grounds into account when considering disputes over Nazi-looted art.
Upon the German invasion of Western Europe by the Nazis in the spring of 1940, Jacques Goudstikker and his family were forced to flee the Netherlands. Goudstikker, a prominent Jewish art dealer, left behind his gallery at Herengracht 458, Amsterdam. Upon their escape, in or around 1940, Nazi Reichsmarschall Herman Göring and his cohort Aloïs Miedl acquired Goudstikker’s assets, including his large stock of Old Master paintings. Miedl acquired a few paintings, while Göring acquired most of Goudstikker’s stock, including the Cranachs.
In or around 1946, the Allied Forces returned hundreds of artworks looted from the Goudstikker collection, including the Cranachs, to the Netherlands. The Cranachs, like other recovered works, were kept in the custody of the Dutch state whilst awaiting claims for restitution under the procedures established by the government after the war. These procedures were prescribed by a series of Royal Decrees that the California court relied upon in finding in favor of the Museum.
One such decree the court relied upon was Decree E133, promulgated in 1944, pursuant to which ownership of all “enemy” property in the Netherlands automatically passed to the State to compensate it for its losses. Decree E133 permitted “‘enemy’ property owners to petition for ‘de-enemization’, so they might regain their property.”[iii] In 1946, the heirs of Goudstikker returned to the Netherlands to seek restitution of their family assets. After carrying out extensive negotiations, the heirs settled with the Dutch state in relation to the artworks that formed part of the Miedl sale, but did not pursue the restitution of artworks that were part of the Göring sale within the relevant deadline set by related Royal Decree E100 (which expired in 1951). Hence, the Göring sale was never nullified and, the court found that pursuant to Decree E133, the related artworks became the property of the Dutch state.
In 1961, George Stroganoff made a claim over several paintings in the possession of the Dutch state, including the Cranachs. He claimed that the paintings belonged to his family and that they had been unlawfully confiscated by the Soviet Union. The Dutch state and Stroganoff engaged in several years of negotiations and in 1966 reached a settlement, whereby Stroganoff agreed to waive all claims on a painting by Rembrandt in exchange for being able to purchase three paintings, including the Cranachs, from the Dutch government for a small sum. A few years later, Stroganoff sold the Cranachs to the Museum.
In 2001, the Dutch government issued a new policy in relation to restitution claims (the “New Policy”), which described the government’s earlier handling of restitution cases as “callous” and called for reform. The New Policy focused on moral rather than legal principles. On this basis, the living heirs of Goudstikker entered into a series of discussions with the Dutch government in relation to the Cranachs. Concerned about these discussions, the Museum wrote to the Dutch government seeking a declaration and clarification in relation to their ownership of the Cranachs. In response to the Museum’s letter, the Dutch government took the position that this was a private dispute between the heirs and the Museum in which it had no involvement. In turn, in 2007, the heirs of Goudstikker filed a lawsuit in the California federal court against the Museum, asserting claims of replevin and conversion among others. After several years of discovery, the court found in favor of the Museum, holding that:
It is undisputed that Göring qualified as an enemy under Royal Decree E133, and that the Cranachs were returned to the Netherlands in 1946. Accordingly, based on its application of the relevant law, the Court concludes that the Dutch State acquired ownership of the Cranachs pursuant to Royal Decree E133. Specifically, the Court concludes that: (1) because CORVO revoked the automatic invalidity of the Göring transaction in 1947, that transaction was “effective” and the Cranachs were considered to be the property of Göring; (2) because Göring was an “enemy” within the meaning of Royal Decree E133, his property located in the Netherlands, including the Cranachs, automatically passed in ownership to the Dutch State pursuant to Article 3 of Royal Decree E133; (3) unless and until the Council annulled the Göring transaction under Royal Decree E100, the Cranachs remained the property of the Dutch State; and (4) because the Göring transaction was never annulled [because the heirs did not seek their restitution or petition for their “de-enemization”] under Royal Decree E100, the Dutch State owned the Cranachs when it transferred the paintings to Stroganoff in 1966.[iv]
The court also opined on the New Policy, which it deemed to be inapplicable in a court of law on the grounds that it departed from a “purely legal approach” to “a more policy-oriented approach . . . in which priority is given to moral rather than strictly legal arguments”.[v] Applying a strictly legal approach, the court held that the legal principles compel a conclusion that the Dutch government acquired ownership of the Cranachs, that their subsequent transfers to Stroganoff and that the Museum were valid, and that the Museum held good title to them, resolving the action as a matter of law in favor of the Museum.
According to recent press reports, the Goudstikker heirs have expressed their disappointment with the court’s ruling and plan to appeal the court’s decision. [vi]
By Azmina Jasani & Till Vere Hodge
Published 4 November 2016
[i] Marei von Saher -v- Norton Simon Museum of Art At Pasadena, et al., 2:07-cv-02866-JFW-SS, Docket Entry No. 331 (Cen. Dist. Cal., Aug 2016).
[ii] Ibid, at p 17.
[iii] Ibid, at p 4.
[iv] Ibid, at p 13.
[v] Ibid, at p 17.
vi See, e.g., Norton Simon Museum can keep Cranachs, California judge decides, The Art Newspaper, 17 August 2016, available at http://theartnewspaper.com/news/norton-simon-museum-can-keep-cranachs-california-judge-decides/.