Another Recovery for the Stern Estate

The AP reports that Immigration and Customs Enforcement officers have returned this work, St. Jerome by Ludovico Carracci (1595) to the estate of Max Stern.  The work was owned by art dealer Max Stern, and he was forced into selling the works in 1937 in Cologne, Germany.  The work had been hanging in the home of art dealer Richard L. Feigen.  Feigen had read about the other recent return to the Stern estate, and discovered the work had been missing after checking with the Max Stern Art Restitution Project

This voluntary return follows soon after another recent return, and the recent decision by the First Circuit, Vineberg v. Bissonette

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ICE Agents Seize Old Master

Immigrations and Customs Enforcement Agents seized this work by an “unknown Utrecht master” dating from 1632. It will be returned to the Max Stern estate. In a piece by Catherine Hickley for Bloomberg, it is reported that the work was seized from Larry Steigrad on April 2nd.

The precedent for the seizure was set late last year by the First Circuit Federal Court of Appeals in Vineberg v. Bissonnette. It affirmed summary judgment for successors of an art dealer—Max Stern who was forced into selling works under the Nazi regime. The sale took place at a 1937 auction; the First Circuit held in that case that the forced sales of works belonging to the Stern estate were a “de facto conficcation”, providing the precedent for this seizure.

Thomas Kline, an attorney for the Stern estate is quoted in the piece “With that decision, all artworks Stern sold under orders at the Lempertz sale are now considered stolen property, [and the estate] “hopes to receive further assistance from law enforcement authorities in the U.S. and elsewhere”.

Lawrence Steigrad, the owner of the gallery in Manhattan where the work was seized says in the piece ““I was in my warehouse in New Jersey when Philip Mould [the London dealer who sold him the work] called me on my cell phone . . . I was shocked and upset that we had not found out before we purchased this painting, as we both had it checked. We were both happy that I had not sold it on, causing more problems and involving private clients.” It seems a bit curious perhaps that this call came only a couple of days before an undercover agent walked into the gallery to look at the work.

“I was in my warehouse in New Jersey when Philip Mould called me on my cell phone,” Steigrad said in an e-mailed response to written questions. “I was shocked and upset that we had not found out before we purchased this painting, as we both had it checked. We were both happy that I had not sold it on, causing more problems and involving private clients.”

The London dealer Philip Mould purchased the work at the Kunsthaus Lempertz auction house in November 2007; the same auction house which sold Stern’s works 70 years earlier. That auction house blames the Art Loss Register for “missing” this work. Luisa Loringhoven describes how this work was not caught by the company’s database:

“The Lempertz catalog from 2007 describes the painting as a portrait of a musician aged 57, while our database describes the painting as a portrait of a bagpipe player,” Loringhoven said. “Though the picture was searched by description and title, it was missed because of these differences.”

Loringhoven said London-based Art Loss Register carries out about 300,000 searches a year. “While we endeavor to be as thorough and as accurate as possible, we may miss a handful of items”.

It seems then Mould is left footing the bill for this restitution at present; though he may choose to proceed perhaps against the Kunsthaus Lempertz or even the art loss register based on the details in the piece. The Department of Justice and Homeland Security will return the work to the Max Stern Estate today in a ceremony in New York today which is also Holocaust Remembrance Day.

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First Circuit Court Swats Away "Cardboard Sword"

A de facto confiscation of a work of art that arose out of a notorious exercise of man’s inhumanity to man now ends with the righting of that wrong through the mundane application of common law principles. The mills of justice grind slowly, but they grind exceedingly fine.

So concluded the First Circuit Court of Appeals in Vineberg v. Bissonnette.  It affirmed summary judgment for successors of an art dealer who lost this work to Nazi Spoliation.  The dispute was an appeal of Vineberg v. Bissonnette, 529 F. Supp. 2d 300 (D.R.I. 2007).  I briefly commented on the earlier district court ruling here

The work is a 19th-century painting by Franz Xaver Winterhalter titled Girl from the Sabine Mountains.  It is valued at roughly $70,000 – $94,000 USD according to Ray Henry in brief AP story.  Katie Mulvaney also has a very fine overview for the Providence Journal

The current possessor based her defense on laches, an equitable doctrine which essentially posits that it wouldn’t be fair to allow the claimant to regain title to the work.  No luck for the current possessor however.  The opinion was not particularly kind to Bissonnette, perhaps because the appeal seemed thin on the merits.  In one passage Senior Circuit Judge Bruce M. Selya admonished the appellant “Proving prejudice requires more than the frenzied brandishing of a cardboard sword; it requires at least a hint of what witnesses or evidence a timeous investigation might have yielded” (emphasis added).  I must find a way to use that in conversation soon.   

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Vineberg v. Bissonnette

If you find yourself involved in a Nazi restitution dispute, be sure to develop your statute of limitations defense in responding to a motion for summary judgment. That’s the lesson I take from Vineberg v. Bissonnette, 2007 WL 4571154 D.R.I., 2007 (Dec. 27, 2007). Federal District Court Judge Mary Lisi ordered Maria-Louise Bissonnette to return the work to the estate of Max Stern. The dispute involved this work, Girl from the Sabiner Mountains, by Franz-Xaver Winterhalter.

The court gave the background of the case as follows (emphasis added):

Dr. Stern was of Jewish descent and, under the Nuremberg laws, was subject to official persecution by the German government. In 1935, the Reich Chamber for the Fine Arts (“Reich Chamber”), an organization of the Nazi government, sent letters to Dr. Stern demanding that he liquidate his inventory and gallery. On or about September 13, 1937, Dr. Stern received a final order to sell his inventory immediately through a dealer approved by the Reich Chamber. Dr. Stern consigned most of his inventory and private collection, constituting hundreds of works, to the Lempertz Auction House (“LAH”), in Cologne, Germany. On or about November 13, 1937, LAH auctioned the items consigned to it by Dr. Stern, including the property that is the subject of the dispute in this matter, a nineteenth century painting by Franz Xaver Winterhalter entitled “Madchen aus den Sabiner Bergen” (“Girl from the Sabiner Mountains”) (“the Painting”). The items consigned to LAH by Dr. Stern were sold at well below market value. Dr. Stern fled Germany for Paris in December 1937. Upon discovering that Dr. Stern left Germany, the German government issued an order freezing his assets. Dr. Stern never received the proceeds of the LAH sale. Dr. Stern eventually left Paris to join his sister in London prior to the outbreak of World War II. Dr. Stern later emigrated to Canada and became a preeminent art collector and dealer there.

In most of these disputes, the question of whether an action is timely is outcome-determinative. That’s probably not surprising given the events giving rise to a cause of action occurred seventy years ago. It seems clear that Stern took great pains to attempt to locate his lost works, and as such the limitations defense may have been difficult. But even so, the defendant seems to have missed their best argument by failing to raise an adequate statute of limitations defense. As such, the action was timely, and both parties had agreed to most of the relevant facts. As the painting was sold “well below market value” and Stern never received the proceeds, the defendant now has to relinquish the painting, even though she appears blameless.

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