Holocaust art claims

Over the last few days there has been some good and bad news for Holocaust survivors and their relatives.

Database of Art Objects at the Jeu de Paume

Firstly, some good news in the recent announcement that more than 20,000 unrestituted art objects which were looted by the Nazis during the Second World War have been listed in a new online database. Entitled the “Database of Art Objects at the Jeu de Paume”, the database lists the thousands of cultural valuables which were seized from French Jewish and Belgian Jewish collections by the Einsatzstab Reichsleiter Rosenberg (ERR) and taken to the Jeu de Paume building in the Tuileries Gardens in Paris.

The ERR was a special unit formed during the War with the purpose of plundering cultural artefacts from Nazi-occupied countries. Between 1940 to 1944, the ERR seized not only books, archives, and other research materials, but paintings, antique furniture, carpets, tapestries, objets d’art, and antiquities. The ERR then produced a detailed inventory of its growing collection, with many of the items being photographed and documented.

The database allows the remaining registration cards and photographs produced by the ERR covering more than 20,000 to be searched in illustrated form. The hope is that the database will enable the objects to be claimed and returned to their rightful owners.

UK heir to £100m Steiner art collection

In more good news, it has been reported that an English descendent of Jewish art collector, Jenny Steiner, is to receive a share of a £100m fortune following a Holocaust restitution claim. The collection of more than 18 masterpieces which was confiscated by the Nazis had remained unclaimed for more than six decades. However, the works are now gradually being recovered and sold, and following extensive research by the Jewish Federation, it appears that the English beneficiary is a second generation descendent of the original collector, and thus entitled to a substantial share of the proceeds of the paintings.

Boston Museum of Fine Arts retains ownership of Oskar Kokoschka's Two Nudes (Lovers)

The bad news is that the sole surviving heir of Austrian Jewish art collector Oskar Reichel has not had the same success. Claudia Seger-Thomschitz had sought to recover possession of Oskar Kokoschka's Two Nudes (Lovers), a valuable oil painting formerly owned by Reichel, but presently held by the Boston Museum of Fine Arts (MFA). However, on 14 October 2010, the United States Court of Appeals, First Circuit affirmed the District Court’s ruling that Seger-Thomschitz's claims were time-barred on statute of limitations grounds.







Two Nudes (Lovers)
1913 Oskar Kokoschka, Austrian, 1886–1980










By way of background, Seger-Thomschitz had claimed that she was the rightful owner of the painting as Reichel had only sold the under duress for insufficient consideration after Austria was annexed by the Third Reich in 1938. Accordingly, Seger-Thomschitz’s attorney had sent a letter to the MFA on 12 March 2007, demanding the return of the painting. The MFA was then said to have undertaken an exhaustive effort to research and document the provenance of the Painting in order to ascertain whether the claim appeared valid or not. The MFA concluded that the original transfer of the painting had been valid. Consequently, on 22 January 2008, the MFA filed an action in the District Court of Massachusetts seeking a declaratory judgment to confirm its rightful ownership of the painting. This was followed by a motion for summary judgment arguing that Seger-Thomschitz's counterclaims were time-barred as a matter of law.

The District Court entered judgment in favour of MFA. Applying the three-year Massachusetts statute of limitations applicable to tort and replevin actions, the District Court held that the causes of action against the MFA accrued when the Reichel family and/or Seger-Thomschitz had discovered or should reasonably have discovered the basis for their claims to the painting. It then addressed both the Reichel family's knowledge and Seger-Thomschitz's knowledge, concluding that all parties should have known about the basis for their claims more than three years before Seger-Thomschitz made her demand on the MFA through her attorney's letter.

Seger-Thomschitz appealed. However, the First Circuit Court was not asked to judge the merits of Seger-Thomschitz’s claims, but rather only whether her claims were time-barred as a matter of law. Thus, the Court concentrated on the applicable law of limitations that “actions of tort, actions of contract to recover for personal injuries, and actions of replevin, shall be commenced only within three years next after the cause of action accrues” (Mass. Gen. Laws ch. 260, § 2A). It noted that the District Court had analysed the accrual question by applying the so-called discovery rule, which provides that a cause of action accrues when “an event or events have occurred that were reasonably likely to put the plaintiff on notice that someone may have caused her injury” and agreed with the approach that the party seeking the benefit of the discovery rule has the burden of showing (1) that she lacked actual knowledge of the basis for her claim and (2) that her lack of knowledge was objectively reasonable.

With regards to Seger-Thomschitz’s knowledge, the Court said that the location of the painting had never been a secret – it had long been on public display at the MFA. Moreover, it was listed in a provenance database on a publicly accessible website, and several published books and at least one catalogue raisonné of Kokoschka's works had identified the MFA as the current holder of the painting. Finally, the Getty Provenance Index, a database of provenance information that has been searchable on the internet since 1999, also noted that the Painting was part of the MFA's collection. Thus, the Court said, there was no question that the MFA's possession of the painting had long been discoverable with minimal diligence.

Furthermore, by her own admission, Seger-Thomschitz had "learned that the Nazis had confiscated artworks from Oskar Reichel in the Fall of 2003 when the Museums of Vienna contacted her concerning their intent to return to her as the sole heir of Oskar Reichel four artworks in their collection by the artist Anton Romako." That information had put her on notice that she might have a claim to other artworks that were previously owned by Dr. Reichel and she retained a Viennese attorney that same year "for purposes of handling the restitution of any artworks that Oskar Reichel may have lost due to Nazi persecution." Yet she did not demand the return of the painting in issue from the MFA until 2007, well over three years after she was contacted about the Romako works.

The Court also looked at the Reichel family’s knowledge of the conditions under which the painting had been transferred and whether the family sold have known that the painting was sold under duress. In this respect, it noted that the District Court had held that the family "had ample notice of any possible claim to the painting decades before the filing of this lawsuit." Indeed, the District Court had noted that Oskar Reichel's son Raimund had written several letters to art historians during the 1980s in which he was indicated that he remembered the painting and knew the details of its transfer. Thus, the Court said that it was this knowledge, plus the fact that the Reichel family sought compensation for some other artworks, but not the painting, which led the District Court to conclude that the family's failure to lay claim to the painting was not due to ignorance about the availability of restitution.

Thus, the First Circuit Court concluded that:

“Any reasonable jury confronted with the summary judgment record would conclude that Seger-Thomschitz's causes of action accrued no later than the fall of 2003, when she learned that the Nazis had confiscated artworks from Dr. Reichel, and could then, with reasonable diligence, have discovered her claim to the painting. Because she did not make a demand on the MFA until March 12, 2007, more than three years after her causes of action accrued, summary judgment was properly granted on the MFA's limitations defense.”

Seger-Thomschitz also argued that the Massachusetts statute of limitations should be set aside because it conflicted with the federal government's foreign policy on Nazi-confiscated art. In this respect, Seger-Thomschitz listed a number of statutes which were claimed to constitute evidence of a federal policy disfavoring the application of rigid limitations periods to claims for Nazi-looted artwork. Seger-Thomschitz relied on Supreme Court jurisprudence in American Insurance Association v Garamendi that "state law must give way" when it is in "clear conflict" with an "express federal policy" in the foreign affairs context.

However, the First Circuit Court also dismissed this argument. It found that none of the language of the Acts cited by Seger-Thomschitz was sufficiently clear and definite to constitute evidence of an express federal policy against the applicability of state statutes of limitations to claims for the recovery of lost, stolen, or confiscated art. Furthermore, the Court held that even if there were an express federal policy disfavoring overly rigid timeliness requirements, the Massachusetts statute of limitations would not be in “clear conflict” with that policy. Rather, the Massachusetts statute of limitations struck a reasonable balance between restitution and repose, such that where a claimant in a missing or confiscated art case could demonstrate that she diligently pursued her property, she could defeat summary judgment.

Thus, unfortunately for Seger-Thomschitz, the District Court’s statute of limitations ruling. was affirmed.

However, that the Circuit Court did make an important point at the end of its decision:

“Precisely because they do not address the merits of a claim, statutes of limitations do not vindicate the conduct of parties who successfully invoke them. Although we make no judgment about the legality of the MFA's acquisition of the Painting in 1973, we note the MFA's own disclosure that, when confronted with Seger-Thomschitz's claim, it initiated a provenance investigation for the Painting that it had not done before. The timing of that investigation may have been legally inconsequential in this case. However, for works of art with unmistakable roots in the Holocaust era, museums would now be well-advised to follow the guidelines of the American Association of Museums: "[M]useums should take all reasonable steps to resolve the Nazi-era provenance status of objects before acquiring them for their collections — whether by purchase, gift, bequest, or exchange." American Association of Museums Guidelines Concerning the Unlawful Appropriation of Objects During the Nazi Era (Nov. 1999)"

It is hoped that this encourages art galleries and museums to heed the Guidelines before acquiring objects for their collections.