(CN) — A Jewish family asked the Ninth Circuit on Tuesday to revive their legal fight to retrieve an impressionist work by Camille Pissarro stolen by Nazis during the Holocaust.
The family filed its claim in a California federal court in 2005 and thus ensued a long legal battle over the painting.
The Pissarro masterpiece “Rue Saint-Honoré in the Afternoon, Effect of Rain” was on the minds of a three-judge Ninth Circuit panel during oral arguments by video Tuesday, decades after the painting hung in a family parlor in Germany.
According to the Cassirer heirs, their relatives owned the painting, a work that was “sold” by Lilly and Fritz Cassirer to the German government for a paltry sum as they fled the country in 1939. The painting that depicts Parisians caught in a spring rain circa 1897 was sought by the Nazis and a condition of the family’s survival according to their court filings.
In 1954, an Allied forces tribunal declared the family the rightful owners of the work, but believing the painting was lost during the war the family accepted a $13,000 payment from the German government.
Decades later, Lily’s grandson found the painting hanging in the Thyssen-Bornemisza Museum in Madrid, Spain. The family was unaware the painting was purchased in 1976 from the Hahn Gallery in New York by Baron Hans-Heinrich Thyssen-Bornemisza.
In May 2019, U.S. District Judge John F. Walter ruled the museum foundation was the rightful owner of the Pissarro because court filings did not demonstrate a “willful blindness” by museum experts when the work was purchased by the baron and added to the museum’s collection.
Despite an international agreement to return stolen Nazi art, Walter said the court had to apply Spanish law and could not force the Kingdom of Spain or the museum to comply with its “moral commitments.”
On Tuesday, U.S. Circuit Judge Sandra Segal Ikuta, a George W. Bush appointee, asked the Cassirer family attorney how Walter erred by not finding “willful blindness” when museum experts overlooked tags on the back of the painting that could be traced back to the Cassirer’s gallery in Berlin.
The family’s attorney David Boies with Boies Schiller Flexner said Walter erred by failing to apply Spanish law.
When the baron and subsequent museum foundation loaned a portion of its collection that included the Pissarro to the Spanish government, there was an agreement to verify the ownership of the paintings. Spain and its counsel decided to assume the foundation had ownership and executed a deed of pledge or “prenda.”
“The facts are undisputed, and the law is uncertain,” said Boies.
He likened the situation to a gun shop owner receiving an antique gun with its serial number filed off.
“The seller refused to give any representation or warranty on the providence or title of it,” said Boies. “There’s no doubt that would constitute under Spanish law receiving stolen property.”
U.S. Circuit Judge Consuelo Callahan, also a George W. Bush appointee, said the museum foundation and the baron appeared to be sophisticated buyers of fine art but even Judge Walter said there were red flags with the torn labels on the back of the painting.
Callahan noted to the foundation’s attorney Thaddeus Stauber that there was an investigation conducted by the museum to verify paintings acquired by the foundation but not for works acquired before 1980.
“It seems to me a little bit of your argument is if we keep doing things, like for example we have them sign prenda, we don’t look at anything that was before 1980,” said Callahan. “You can do all these things and ‘we paid a lot for it, the baron paid a good amount of money and we sold it for a lot. It’s not like you can get a Pissarro for $99.95.’ But do all of those things really kind of remove the blood of the Nazi looting? That seems problematic to me.”
Stauber said, “Your honor, nothing can remove the blood of the Nazis, the looting, the war that they put upon the Jewish people or the world. We are not suggesting that, your honor.”
That prompted Callahan to ask: “Well, why won’t Spain give the painting back?”
Stauber noted the painting is owned by the museum, not Spain, though he acknowledged, “Admittedly, it was the Spanish government that put forth the money.”
He said the question before the panel is whether the foundation had knowledge at the time it acquired the collection in 1993 that the painting was stolen
Rounding out the panel, a third George W. Bush appointee U.S. Circuit Judge Carlos Bea brought the question back to the matter of a pledge being made before the collection was loaned to the Spanish government.
“If that were so, isn’t that evidence that TBC sought the pledge, indeed an insurance policy, irrefutable evidence that TBC knew there was a risk of title defect and sought an indemnity against it and did nothing about it?” asked Bea, referring to the museum foundation by acronym.
Stauber said it was not irrefutable because even Judge Walter found the foundation’s experts researched the painting and the baron had no knowledge of that.
Callahan asked Stauber if whether the Spanish government will seek to return the painting to the Cassirer family if the foundation prevails in the appeal. Stauber noted the foundation owns the painting but is bound by contracts it entered to acquire the collection — and a Spanish court would need to order the painting transferred to a third party.
The panel did not indicate when it would issue its opinion.
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