Gurlitt Task Force Issues Second Public Recommendation, Urges Restitution of Liebermann painting to David Toren - Lawsuit Not Over Yet

Art Law Report 15 August 2014
By Nicholas O'Donnell

Eileen Kinsella at ArtNet news reported today that the Gurlitt Taskforce has recommended the restitution of the Max Liebermann painting Riders on the Beach (Reiter am Strand) to David Toren, a New York man who left Germany at age 14 in 1939.  His great uncle David Friedmann lived in Breslau, the capital of Silesia (now part of Poland, known as Wrocław).  The Nazis catalogued and seized Friedmann’s art collection in 1939-40, and the Liebermann painting appears on those  records.  It was later found among those 1,280 objects seized from Gurlitt a little over two years ago when he aroused suspicion returning from Switzerland with a large amount of cash. 

This development is significant for at least three reasons.  First, it is only the second public pronouncement by the Task Force about restitution of a particular object, following the recommendation that Seated Woman by Henri Matisse be returned to the heirs of Paul Rosenberg. 

Second, Toren remains the only claimant of which we are aware to initiate litigation in the United States over the Gurlitt find.  Torent’s Complaint seeks recovery under several theories, but they fall into two groups: the first is bailment, the other is wrongful possession.  Jurisdictionally, the case does not follow the Altmann v. Republic of Austriainvoking the FSIA for a claim against a foreign sovereign related to property taken in violation of international law (the so-called “appropriation exception” to sovereign immunity).  Instead, the Complaint relies on 28 U.S.C. § 1605(a)(2), which states that “A foreign state shall not be immune from the jurisdiction of courts of the United States . . . in any case in which the action is based . . . upon an act outside the territory of the United States in connection with a commercial activity of the foreign state elsewhere and that act causes a direct effect in the United States.”  The “effect” that the Complaint alleges that Bavaria’s seizure of the paintings caused, was that its “constructive bailment” agreement (the idea that there was an agreement with the true owners) was breached.  Since Toren is in the United States, he argues, the effects of the breach—again, caused by the seizure in Munich—happened in New York and satisfy the statute.

Asked about the effect of the Task Force’s decision on the lawsuit, Toren’s attorney August Matteis said, “We are extremely pleased, but not surprised, that the Task Force has agreed with our position that Two Riders On a Beach belongs to the heirs of David Friedman. . . .  This is a very important first step in returning the painting to its rightful owners and we hope that the German government will not further delay returning the painting that was stolen from David Friedman over 70 years ago.”  He cautioned, however, that  “We have no intention of dropping the lawsuit until Two Riders has been turned over to David Toren and the German government has provided us with further information about other stolen paintings belonging to David Friedmann that may be in the collection seized from Gurlitt.”

Lastly, the announcement underscores ongoing concerns about timing.  The one-year agreement deadline to review the Gurlitt collection is nearly half done, and the pace of decisions has hardly quickened.  At this rate, there would only be four or five announcements by the time the deadline passes.  Even the website has yet to report the decision. 

Meanwhile, there have been no further indications of whether the Kunstmuseum Bern will accept Gurlitt’s appointment as heir.  A recent article here in the Berner Zeitung (in German) suggest a number of organizational and bureaucratic obstacles to the making of that decision.

Except more to come in the story that never ceases to surprise.
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