Multi-million dollar collection remains with the Netherlands after heirs lose U.S. and Dutch claims

Posted on: May 13, 2020 by

Updated: May 27, 2020

Efforts to recover an art collection sold in the Netherlands during Nazi reign have met with a fruitless end – yet again. A U.S. District Court recently decided that the sale of the collection constituted a “genocidal taking” involving duress in violation of international law.[1] However, the alleged heir to the collection was found not to satisfy a host of prerequisites necessary to proceed.

As discussed in an earlier blog post, the U.S. suit was filed after the Netherlands rejected restitution requests for this collection. The claimant in this case is Bruce Berg, the grandson of a partner in a gallery specializing prior to World War II in Dutch Old Master paintings, called Firma D. Katz.[2] During the war, Nazi officials purchased artwork from Firma D. Katz, forcibly, according to the case presented by the claimants. Most works were returned to the Netherlands after the war,[3] with all but two alleged to have been given to the Netherlands “as custodians pending the determination of the lawful owners thereof”. The agreements of transfer state “that said items will be returned to their lawful owners”.[4] By definition, one would imagine that a ‘custodian’ would guard property – not take ownership of it.[5]

Rembrandt van Rijn, Portrait of Dirck Jansz. Pesser, c. 1634 (Image: Public domain – Wikimedia Commons)

In 1947, the Katz brothers recovered over twenty-five paintings after paying the Dutch government the required fee of what now amounts to $1.5 million.[6] After the Netherlands endorsed the Washington Principles (a non-binding international agreement for the restitution of Holocaust-era looted art) and created the Restitution Committee, the Katz heirs pursued restitution claims from 2004 to 2018 that were ultimately denied (see here, here and here).[7] The gallery owners’ heirs had been unable to provide sufficient details about the wartime sales of the artwork. Thus, the Netherlands asserted it was the rightful owner of the work, despite having received the collection after the war under a custodial agreement.

In 2018, Bruce Berg filed suit in South Carolina’s District Court in Charleston. The Netherlands, its Ministry of Education, a Ministry department, and a host of museums were named as defendants. Berg alleged that 143 works from the Katz collection were held by the Netherlands in storage or were loaned to museums and/or governmental buildings and should be returned to him.[8]

The court granted the defendants’ motion to dismiss all claims for a host of reasons with lack of jurisdiction at the fore.[9] Under the Foreign Sovereign Immunities Act (FSIA) the Netherlands was found to have full immunity from suit, and the FSIA’s expropriation exception was found not to apply to remove that immunity.[10] Because the Netherlands asserts ownership over the collection, failure to attain jurisdiction over it was fatal to the viability of Berg’s case.

The closure of the Berg suit in the U.S. solidifies Dutch ownership of the Katz collection in the face of what were arguably reasonable proofs of claim. Some final questions then arise – are such outcomes “just and fair” as mandated by international restitution policy that both the U.S. and the Netherlands have agreed to follow?[11] And if not, what can be done? Should a ‘custodian’ – even one that is protected by sovereign immunity – be allowed to keep looted artwork indefinitely? These are questions which may well trouble potential claimants, and whilst the Berg case has now reached its conclusion, the issues it raised will undoubtedly be discussed for some time to come.

[1] Berg v. Kingdom of the Netherlands, et al, Docket No. 18-CV-3123 (D.S.C. 2018), ECF No. 64, Am. Order at 21-22 (“As to the first alleged taking–when agents and officers of Nazi Germany acquired ownership of the Artworks under duress–the Court finds that the allegations state a genocidal taking and thereby satisfy the standard of a taking in violation of international law.”)

[2] Berg, ECF No. 30, Amended Complaint at 3; ECF No. 64, Am. Order at 2-3.

[3] Am. Order at 2-3.

[4] Am. Compl. at 55(d); ECF No. 30-1, 1945 Receipt and Agreement for Delivery of Cultural Objects at 1.

[5] https://www.merriam-webster.com/dictionary/custodian

[6] Am. Compl. at 149-150.

[7] Am. Compl. at 160-177.

[8] Am. Compl. at 2, 225-258.

[9] Am. Order at 2, 9-35, 42-43.

[10] Foreign Sovereign Immunities Act of l976, Pub. L. 94-583, 90 Stat. 289l, 28 U.S.C. Sec. §1601 et seq.; Am. Order at 43.

[11] 1998 Washington Principles on Nazi-Confiscated Art at 8.