STOLEN ART

REPLEVIN--An action to recover unlawfully taken or stolen goods.

STATUTE OF LIMITATIONS--A specific time period in which the action must be brought. For replevin, it generally starts to run when a demand for the return of the property is made and there is a refusal.

DUE DILIGENCE--"Such a measure of prudence or activity, as is properly to be expected from, and ordinarily exeracised by, a reasonable and prudent man under the particular circumstances; not measured by any absolute standard, but depending on the relative facts of the special case"

INDIANA--S of L for replevin is 6 years

Autocephalous Greek -Orthodox Church of Cyprus v. Goldberg

The property in dispute--4 rare 6th century Byzantine mosaics, housed for 1400 years in a church on Cyprus. Cyprus was occupied by the Turks between 1974 and 1976. When the Greek Cypriots relocated they found the mosaics missing in 1979. Between 1979-1988 Cyprus contacted UNESCO, museums, curators, embassies, consulates, Byzantine experts, journals. . .

Mrs. Goldberg is set up by art dealers in Indianapolis to view/buy the mosaics.

$1,080,000 is paid, divided as follows:

$350,000 to Dikman (who claims to own the mosaics)

$282,500 to Van Rijn (a commission for the Dutch art dealer)

$297,500 to the Indianapolis art dealer who set it up

$70,000 to an attorney in London

$80,000 to an attorney travelling with Van Rijn

$120,000 to Goldberg (who spends $50,000 and returns with the rest, which she "smurfs" into 8 bank accounts.)

 

Within 6 months she uses another art dealer to offer to sell the mosaics to the J. Paul Getty museum in Malibu for $20 million. The curator at the Getty contacted Cyprus to see if these were the missing mosaics.

NEW YORK--S of L for replevin is 3 years

DeWeerth v. Baldinger (federal court 1987)

A Monet painting, "Champs de Ble a Vetheuil," goes missing after American soldiers are stationed in the home where it is hanging in 1945. In 1946 DeWeerth files a standard form for missing art. In 1948 she writes her attorney about insurance for the painting. In 1955 she sends a photo of the painting to an expert in medieval art. And in 1957 she sends a list of lost art to the West German FBI. Then she "gives up."

In 1956 Wildenstein and Co. purchased the Monet from an art dealer in Geneva and sold it to Baldinger for $30,900 in the following year. It has been exhibited in the U.S. twice.

In a 3 day investigation in 1981, DeWeerth's nephew identifies the painting and its history in the U.S. using "Catalogue Raisonne." In 1982 she sues for the return of the painting (now worth $500,000).

Since the highest state court in NY had not made a ruling interpreting the S of L, the federal has to guess what it would say. It choses a "due diligence" analysis.

Guggenheim v. Lubell (state court 1990 and 1991)

In the mid-1960's the Guggenheim thought a water color study for the oil painting by Chagall, "The Cattle Dealer," was misplaced or missing.

In 1967 Mrs. Lubell bought the painting from a Madison Ave. art dealer for $17,000.

In 1970 the Guggenheim did an inventory and confirmed that the work was missing. they did nothing, fearing a report would drive the work further underground.

In the 1980's Mrs. Lubell brought the work to Sotheby's for an appraisal ($200,000). They notified the Guggenheim. The museum sued for the return of the painting.

N.Y. Supreme Court

N.Y. Supreme Court, Appellate Division

Court of Appeals of New York

*rejects a due diligence analysis

a N.Y. statute requiring due diligence was vetoed by the governor on the advice of the State Dept., the Dept. of Justice and USIA--all thought such a requirement would make N.Y. a haven for cultural property stolen abroad.

too difficult to specify the type of activity that would be required to show due diligence

no business practice regarding museums' reporting stolen art

*the burden of proving the art is NOT STOLEN is on the purchaser

 

DeWeerth v. Baldinger II (federal court 1992)

Applies the standards in Lubell.

DeWeerth v. Baldinger III (federal appellate court 1994)

The 1992 decision "inappropriately disturbed a final judgment in a case that had been fully litigated and was long sense closed." A plaintiff cannot reopen a closed case "in order to gain the benefit of a newly-announced decision of a state court."

In the Matter of the Grand Jury subpoena duces Tecum Served on the Museum of Modern Art (highest state court 1999)

In 1997, the Leopold Foundation in Vienna loaned 150 works by Egon Schiele to MOMA for a three month exhibit. Heirs of Lea Bondi claim to own "Portrait of Wally," and heirs of Fritz Grunbaum claim to own "Dead City III." They ask MOMA to keep the paintings until the ownership could be settled.

MOMA response

Subpoena served on MOMA by the N. Y. County D.A.

New York Art and Cultural Affairs Law--Section 12.03: No seizure of fine art on route to, while showing, or on return to lender.

Majority: Free flow of art to NY

Dissent: Assists the free flow of stolen art