It’s a rainy winter day in Paris, 1897. A distinguished gentleman is standing at his easel with the curtains drawn, his eyes surveying the street below. As a painter myself, I like to imagine the excitement the Impressionist Master Camille Pissarro felt as he envisioned the composition of the scene that would become Rue Saint-Honoré, Après-midi, Effet de Pluie – a painting that now has made controversial art law precedent due to a recent U.S. Federal Court decision that found the Kingdom of Spain to be its rightful owner.

The Looting of Rue St.-Honoré

For nearly four decades, Rue St.-Honoré was owned by the Cassirer Family in Berlin. That abruptly changed in 1939 when its owner at that time, Lilly Cassirer, was given a choice by a Munich art dealer appointed by Hitler to appraise her belongings – stay in occupied Germany or forfeit Rue St.-Honoré in exchange for visas. The matriarch of this Jewish family chose the later, saving herself and some of her family from certain death.

In the wake of the war, Mrs. Cassirer sought to have the painting returned in a German restitution court, but the painting could not be located. Instead, she received $13,000 in reparations from the German government, the terms of which included that she did not waive her right to seek return of the painting. This is important for a few reasons: first, these reparations fell far short of the fair market value of Rue St.-Honoré; and, more importantly, no sum could compensate for the priceless value this piece had as the Cassirers’ family heirloom.

 

In 1998, the “Washington Principles on Nazi-Confiscated Art” was created in an effort to reunite survivors or their heirs – individuals such as the Cassirers – with property unlawfully taken during the timeframe of World War II. Under its terms, participating nations would seek to achieve ‘fair and just’ solutions in regards to Nazi-confiscated movable artwork, cultural and religious property. Over forty nations and several NGOs were signatories to this agreement, including Spain.

 

The Outcome of an Eighteen-Year Battle

In 2001, just a few years after signing the Washington Principles, Spain received a petition from the Cassirer Family for the return of Rue St-Honoré. The Cassirers had recently discovered the painting in the collection of the state-run Museo Nacional Thyssen-Bornemiszain Madrid (the “Foundation”). Even though works by Pissarro were known to have been plundered by the Nazi regime, Spain denied the Cassirers’ request without making an inquiry into its merits. Since then, Spain has not wavered in its refusal to return the painting to the Cassirers even though its position is wholly inconsistent with the Washington Principles.

In 2005, Lilly Cassirer’s grandson, Claude Cassirer, instituted a lawsuit in California’s Federal Court against Spain and its Foundation. Both these defendants filed motions to dismiss the action based on the Foreign Sovereign Immunities Act (“FSIA”), which holds thatAmerican courts do not have jurisdiction over foreign sovereigns. In a win for Mr. Cassirer, the Court allowed the case to proceed based on its finding that the FSIA’s expropriation exception applied because the painting was seized in violation of international law – regardless of the fact that the Nazis took the painting, not Spain.

After Claude Cassirer’s death in 2010, his heirs continued to pursue the suit through several appeals, including an appeal of a lower court ruling in 2015 that the Foundation held rightful ownership under Spanish law because of its public display of the painting for over two decades. In what seemed another hopeful ruling for the family, the Ninth Circuit did not follow the lower court’s rationale, and instead held that a full trial on the merits was needed to determine the rightful owner. The lower court’s decision on the choice of law was not disputed though – the painting’s location in Spain and its purchase by the Spanish government mandated that Spanish law apply.

That trial took place over the course of two weeks in December 2018 in the United States District Court, Central District of California (Los Angeles). During the course of the trial, the Honorable John F. Walter applied two questions necessary under Spanish law: (i) whether the prior owner, Baron Hans Heinrich Thyssen-Bornemisza, bought Rue St.-Honoré in good faith in the mid-1970s when he purchased it from a New York gallery; and (ii) more importantly, whether the Baron or the Foundation had actual knowledge the painting was stolen.

As to the first question, the evidence showed the Baron, a highly sophisticated art collector, paid fair market value for the painting ($300,000) from a reputable gallery, but several “suspicious circumstances” surrounded his purchase that should have given the Baron pause, including the painting’s incomplete provenance that stopped with an 1899 Paris exhibition and labels affixed to the back of the work that had been partially removed, one of which showed the painting had once been in Berlin. In light of such “red flags”, the Court found the Baron did not take reasonable steps to inquire whether the painting had been looted.

Despite finding it “undisputed that the Nazis stole the Painting from Lilly”, Judge Walter held under the second question that the evidence did not support finding the Baron or the Foundation had “actual knowledge” of the plunder. Thus, the Foundation’s acquisition of the painting was deemed a “good faith purchase” when it used a $327 million payment from Spain in 1993 to buy the Baron’s collection, which Spain already had rights to under a $50 million, ten-year lease signed with the Baron in 1988.

Now, after nearly two decades of effort by the Cassirers for the return of this painting, a decision was handed down on April 30, 2019. Judge Walter found that judgment must be entered in favour of the Foundation, making the Foundation the legal owner of Rue St.-Honoré. (Cassirer v. Thyssen-Bornemisza Collection Foundation, 05-CV-03459).

The International Community’s Moral Commitment to Return Looted Art  

In a notable comment, the California District Court pointed out that it “cannot force the Kingdom of Spain or Thyssen-Bornemisza to comply with its moral commitments”. The Court was referring to Spain’s agreement to participate in the Washington Principles and 2009 Terezin Declaration, which was created to bolster global participation in the return of Nazi-looted art. Spain’s outward participation in these agreements belies a concerning reality – in this instance, Spain did not comply with the international restitution principles it pledged to espouse.

If it had required provenance research prior to leasing or purchasing the Baron’s collection, Spain and its state-run Foundation would have discovered the painting’s sordid past: the Nazi appraiser who initially took Rue St.-Honoré from Mrs. Cassirer traded it to another dealer who fled to Holland where the painting was seized by the Gestapo and returned to Germany for auction in 1943; from there, it appeared in New York in 1952 where it was sold to a private collector, and again was sold in 1976 before being purchased by the Baron.

The fact that this painting was by Pissarro was another tip-off to be on high alert: Pissarro was of Jewish descent, making his work highly targeted by the Nazis. Further, the specific peculiarity of Rue St.-Honoré was another warning: its half-torn label evidenced its time in Berlin coupled with curious gaps in its provenance. The cumulative effect of these facts should have prompted inquiry by any nation, but especially one that willingly joined in on the Washington Principles.

This case stands as a clear example of the chal­lenge that exists in making amends for war damage and calls into doubt the real impact agreements like the Washington Principles have. Such pacts are only as enforceable as its signatories make them. The example set in this instance for the gen­er­a­tions that follow is that the Wash­ing­ton Prin­ci­ples, the Terezin Declaration, and the like have questionable impact on progressing the return of looted work.

Going Forward

Pissarro was described by American Painter Mary Cassatt as “such a professor that he could have taught stones to draw correctly.”Like its creator, perhaps Rue St.-Honoré can also stand as an instructor to show the moral weight that must go into drawing the line of justice in the global art community.

Meanwhile, whether this is finished business has yet to be announced. As of this writing, the attorney for the Cassirers, Steve Zack, has not yet announced whether an appeal of the district court’s decision will be forthcoming.