United States: Restitution Claims Resolved In New York And Cologne, New Case Filed Against Germany

Last Updated: September 30 2016
Article by Nicholas M. O'Donnell

Word came this week of two resolutions of claims to Nazi-looted art in museums in New York and Cologne, and a new Nazi-looted claim against Germany filed in Washington. Barely a month after the Neue Galerie (of Austrian and German art) in New York announced that it had discovered a "major work" in its collection had a clouded history, the museum announced an agreement concerning the Karl Schmitt-Rotloff painting Nude (1914). It is not known if the Schmitt-Rotloff is the same work to which the museum referred last month. Around the same time, the Wallraff-Richartz-Museum in Cologne, Germany, announced that it had agreed to return a drawing by Adolf Menzel that had been sold to Hildebrand Gurlitt as its owners fled Nazi Germany in the 1930s. Blick über die Dächer von Schandau (View over the rooves of Schandau) (1886) will be retuned to the heirs of Hamburg attorney Albert Martin Wolffson and his daughter Elsa Helene Cohen. These settlements are examples of constructive dialogue and enlightened treatment of the historical fact. The new litigation likely means the opposite approach from the German defendants.

Both settlements are based on a welcome clarity about the underlying circumstances. The Schmitt-Rotloff painting belonged to Alfred and Tekla Hess, collectors who were targeted by the Nazis and whose works of Expressionists art in particular have resurfaced around the world. Approximately ten years ago, the Hess heirs came to an agreement with the City of Berlin and the Brücke Museum over the iconic Berliner Strassenszene (Street Scene in Berlin) by Ernst Ludwig Kirchner (a fellow member of Die Brücke with Schmitt-Rotloff) (1913). Disfavored substantively by the Nazis, the Expressionists were targeted for seizure and resale nonetheless as part of a quest for hard currency. In the case of the Schmitt-Rotloff painting, the Neue Galerie bought it at auction in 1999, apparently unaware of its history. The museum agreed formally to return the painting to the Hess family, and then buy it from them. This structure is similar to that which resolve one of the very first Nazi-looted art litigations in the United States, the Degas Landscape with Smokestacks that had been given to the Art Institute of Chicago by one of its trustees before the heirs of Bernhard Guttmann made a request for its return (the work remained in Chicago). By the family's account, the museum approached the claim in a transparent and professional manner from the outset.

In Cologne, the taint of Gurlitt was apparently impossible to get around, and the museum took a progressive view of the fact of its owners' flight. Too often (and by Germany at the national level, see more below), one hears of pressure on heirs to prove affirmatively the unfairness of a purchase, when the proper presumption is on the party seeking to validate the transaction. Here, as reported by dPA (article in German), Wolffson was targeted immediately, as was his grandson Otto Martens, in 1933 as part of the Law for the Restoration of the Civil Service, and marginalized from his established profession. Before emigrating from Germany in 1938, Cohen apparently gave the Menzel drawing to her (non-Jewish) daughter in law Elisabeth Linda Martens, to avoid its seizure under anti-Semitic property laws. Martens sold it to Gurlitt, one of the four authorized dealers in so-called "degenerate art" on December 31, 1938, who in turn consigned or gave the work to the Galerie Gerstenberger in Chemnitz, from which the Cologne museum later acquired it.

In both cases, the museums took a commendable and cooperative approach. By contrast, a new lawsuit in Washington, DC underscores many lingering issues. Readers will be familiar with the case of David Toren, who achieved prominence when the Max Liebermann Two Riders on the Beach turned up in Cornelius Gurlitt's apartment. The work had belonged to Toren's uncle David Friedmann of Breslau, whose collection was explicitly targeted by the Gestapo. The Liebermann was one of the first (and still few) works to be recommended for restitution from the Gurlitt trove by the Task Force Schwabinger Kunstfund, or Gurlitt Task Force.

Toren has now unearthed in Polish archives the comprehensive list, authored by Nazi authorities, of Friedmann's collection that was targeted for seizure. Toren has sued the Federal Republic of Germany, bringing claims for conversion. Essentially, these common law claims argue that the authorized taking of property entitles the plaintiff either to the property's return (which is probably impossible for any works not currently in Germany's possession, which is unknown), or its value. In another context, a car thief is liable to the owner to return the car, and to pay for the value if the car has been damaged or destroyed.

Toren has invoked the same provision of the Foreign Sovereign Immunities Act (FSIA) as the Welfenschatz case brought by my clients currently pending in the same court. Known as the "expropriation exception," 28 U.S.C. § 1605(a)(3) holds that where the claim concerns a taking of property in violation of international law and the sovereign defendant is engaged in commercial activity, it may be sued. This law provided jurisdiction over, for example, the Altmann case, the Cassirer case, and the Malewicz case. As an aside, the recent amendment to the FSIA by virtue of Congress's override of President Obama's veto concerns the same principle—exceptions to sovereign immunity—but relates to incidents of terrorism within U.S. territory, and does not affect restitution claims related to Nazi looting in Europe.

Given Germany's response to my clients' case, one can sadly expect further denials that the genocidal targeting of Germany's Jewish art collections was a violation of international law. That question is currently before the court.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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Nicholas M. O'Donnell
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