the heirs of Martha Nathan (the "Heirs") met for the first time with the museum directors of the Toledo Museum of Art (Don Bacigalupi) and the Detroit Institute of Arts (Graham Beal) (the "Museums" and the "Museum Directors") to discuss their claims the paintings "Street in Tahiti" by Paul Gauguin (Toledo) and "The Diggers" by Vincent van Gogh (Detroit) (the "Paintings").
Martha Nathan Heirs React to Lawsuits to "Quiet Title" Filed by the Toledo Museum of Art and the Detroit Institute of Arts
(mmd-news) - - On Tuesday, Jan 24, 2006, the heirs of Martha Nathan (the "Heirs") met for the first time with the museum directors of the Toledo Museum of Art (Don Bacigalupi) and the Detroit Institute of Arts (Graham Beal) (the "Museums" and the "Museum Directors") to discuss their claims the paintings "Street in Tahiti" by Paul Gauguin (Toledo) and "The Diggers" by Vincent van Gogh (Detroit) (the "Paintings"). The Heirs were under the impression and belief that the Museum Directors were meeting with them in good faith to discuss this matter under the principles of the 1998 Washington Conference on Holocaust-Era Assets and in order to reach a private resolution of this matter. The Heirs were also under the belief that after the meeting, the Museum Directors would report to their respective board of directors who would then further consider the matter.
After a full discussion of the issues by both sides, at the end of the meeting the Museum Directors asked the Heirs to withdraw their claims to the Paintings. In response, the Heirs asked the Museum Directors to agree to submit the matter to an independant art commission or arbitrator for an independant review and decision. The Heirs specifically said that they would accept a decision from an independant art commission or arbitrator, but they could not accept a decision made by the Museums without an independent review.
The next day, on the morning of Wednesday, January 25, 2006, Thaddeus Stauber, Esq., counsel for the Museums informed counsel for the Heirs, David J. Rowland, Esq., that suit had been filed in federal court in Toledo and Detroit to "quiet title" to the Paintings. In addition, a press release was issued by the Museums shortly thereafter. A review of the two lawsuits filed, indicates that both were filed on January 24, 2006, while the Heirs were still meeting with the Museum Directors and their counsel. In addition, the press release also appears to have been prepared well in advance of the meeting with the Heirs in New York.
The Heirs are distressed that the Museums have taken what they regard as a private matter, which was being discussed privately, into the public forum of the courts and the press. The Heirs also believe that by taking such a step and disregarding the request of the Heirs to have this matter addressed privately by an independant art commission or arbitrator, the Museums have broken their pledge to abide by the principles of the Washington Conference to have such claims be adjudicated under principles of fairness and justice, rather than to resort to the courts which are constrained to apply rigid rules which could not possibly take into account the circumstances under which these artworks were lost. In addition to the principles of the Washington Conference, the Museums and the Museum Directors involved are members of the American Association of Museums (AAM) and the Association of Art Museum Directors (AAMD) which have also promulgated guidelines and principles under which such claims are to be considered. This includes the consideration of how other public museums outside of the United States resolve such claims. It is the view of the Heirs that the Museums have not decided this matter in accordance with the principles and quidelines set down by the AAM and the AAMD and that in fact these principles were disregarded when the Museums decided to file lawsuits in court and issue a press release, even before they had finished meeting with the Heirs.
With respect to the factual assertions in the Museums press release, the Heirs note that Martha Nathan was a German Jew who lived in Frankfurt am Main, Germany. Research in the German resitution files indicates that she lost almost all of her property in Germany due to Nazi persecution and that she was determined in German restitution proceedings after WWII, to have the status of a Nazi persecutee. In June of 1938, she sold her residence in the Mendelsohn Strasse in Frankfurt for approximately 1/2 of its tax assessed value and the proceeds of the sale were put into a blocked account which was later confiscated. At the time of this forced sale of her residence in Germany, the local police surveyed the contents of her home and confiscated artworks which were deemed to be of "national value" to Germany. Six paintings were thus confiscated and were then deposited with the Staedel, the local fine arts museum in Frankfurt. After paying a large exile tax of 87,431 Reichmarks, Mrs. Nathan was permitted to leave Germany with 15,000 Reichmarks to "start her new existence" in France. In addition, she was permitted to take with her furnishings from her residence in the Mendelsohn Str. in Frankfurt, including artworks, books, and furniture. These items were then stored by her in a warehouse called Nortier in Paris, France. Mrs. Nathan never rented an apartment in France, due to her uncertainty as to whether she could safely stay in France. After the Germans invaded France in 1939 and thereafter occupied Paris, they also confiscated, in 1942, all of Mrs. Nathan's belongings stored in the Nortier warehouse. Mrs. Nathan also filed claims for the loss of her aforementioned property with France after WWII, and was also deemed to be a Nazi persecutee in those proceedings. She received a damage award for the loss of her property at the Nortier warehouse in the French proceedings, however the furnishings, including artworks, were never recovered. The artworks lost in France are currently listed on the website www.lostart.de.
The artworks in question here, "The Diggers" by van Gogh and "Street in Tahiti" by Gauguin, may have been stored in Basel, Switzerland, since 1930, together with other important pieces of the Hugo and Martha Nathan collection. However, as set forth in the post WWII, Wildenstein New York bills of sale to the Museums, both paintings belonged to the Martha Nathan collection in Franfurt am Main, Germany, and were in Frankfurt am Main, Germany in July of 1931 for an exhibition at the Staedel called "From Image to Allegory." It is currently unknown how long these artworks stayed in Germany after that exhibition, as neither the Heirs nor the Museums have yet been able to uncover further information regarding this important fact. However, when Mrs. Nathan did finally leave Germany after selling her Frankfurt residence in June of 1938, the Paintings were apparently in Basel, Switzerland, in December of that year.
At the time of the purported sale of the Paintings by Mrs. Nathan in December of 1938, just a few months after the duress sale of her residence in Germany and a few weeks after Reichskristallnacht (the night of the broken glass, when Nazi storm troopers destroyed Jewish shops and other Jewish property), Mrs. Nathan was a persecuted Nazi refugee who had effectively lost most of her property in Germany. In a statement made to restitution authorities after WWII she said:
"Developments in Germany after the Nazis came to power forced me to emigrate in Feburary 1937. I was not sure in what country I could find refuge. Since I could no longer postpone my leaving Germany, I first went to relatives in Paris. I also had my personal effects sent there. However, I was unable to take delivery of these goods for lack of my own residence in Paris. The household goods therefore remained with the Paris forwarder who had received them from the German mover and put them in storage in Nortier. Since it soon became evident that conditions in France, especially once the war broke out, were not suitable for establishing a new residence there, I decided after some hesitation to travel to Switzerland. Having taken care of the necessary paper work I left for Geneva in August, 1939 and settled there. According to files....my stored belongings were confiscated by the German occupation forces in June of 1942 and taken away."
It is therefore clear that Martha Nathan did not cease to be a Nazi victim when she left German soil, but Nazi persecution against her continued when she lived temporarily as a refugee in France where the Germans also confiscated all of her property because she was Jewish. It was in December of 1938, between the time when she lost her property in Germany and when she lost her property in France, that the purported sale of the Paintings to the art dealers took place. It is thus very clear from these facts, that the sales took place exactly during the time Mrs. Nathan was still being victimized as a Nazi persecutee. In addition, it should be noted that Mrs. Nathan was a collector of art and not an art dealer. Had she not been forced to sell the Paintings out of necessity caused by her situation as a Nazi victim, she would not have sold her collection at that time, in duress sales, for duress prices.
The Museums say that Mrs. Nathan did not pursue claims for the Paintings after WWII. However, it is clear that the Paintings, because they were neither located in Germany nor France, were not subject to the restitution laws of either of those two countries, and were thus not claimed under the German and French restitution proceedings brought by Mrs. Nathan after WWII. The Heirs believe that in order to recover the Paintings, Mrs Nathan, who was 71 at the end of WWII, would have had to proceed in Switzerland under Swiss law, which did not have comparable restitution laws to Germany and France, and under which she may have had to pay back any purchase price which she obtained in order to obtain back the paintings. However, since she was forced to sell the paintings out of necessity because almost all of her other property had been taken due to Nazi persecution, Mrs. Nathan did not have the financial resources to claim, track down, and buy back the Paintings after WWII.
As to the issue of whether or not Mrs. Nathan obtained a fair price for the Paintings, the Gauguin was sold to the art dealer consortium of Georges Wildenstein, Alexander Ball, and Justin Thannhauser (the "Art Dealers") for approximately $6,800 in December of 1938, and was then resold by the Art Dealers for $25,000 to the Toledo Museum of Arts in May, 1939, only five months later. A profit was realized on the sale of approximately 270%, more than two and one half times the amount paid to Mrs. Nathan by the Art Dealers. The same percentage of profit was also made by the Art Dealers for the van Gogh, where Mrs. Nathan was paid approximately $9,000 and where the Art Dealers sold the van Gogh to Mr. Tannahill (who later donated the painting by bequest to the Detroit Institute of Arts) for $34,000, within a period of slightly more than two years from the date of the purported purchase from Mrs. Nathan.
The Heirs do not think that one need be an art expert to realize that a profit of 270% within such a short time indicates that an unfair price was paid for the Paintings when the Art Dealers purportedly purchased them from Mrs. Nathan. The Heirs also believe that this indicates that the Paintings were sold under extreme duress at a time when Mrs. Nathan was deemed to be a Nazi persecutee under both the German and French restitution proceedings. Although the Museums hired Laurie Stein to review the sales with respect to the issue of whether or not they were sold at fair market by Mrs. Nathan, the Heirs did not consider her to be independent of the Museums nor did they find her explanation of the 270% profit on the resale of the Paintings to be credible. The
Heirs noted that other Gauguin and van Gogh paintings were sold in Switzerland at the Fischer Gallery in Lucerne in 1939, for far higher prices. The Heirs also noted that the purported sales to the Art Dealers were for prices far below the insured value of the Paintings as listed with respect to their July, 1931 exhibition at the Staedel fine arts museum in Frankfurt.
In particular, the Heirs are of the view, that the Toledo Museum of Arts, when it purchased the Gauguin painting in May, 1939, failed to take into account that the Gauguin painting was coming from a well known Jewish collection in Frankfurt am Main, Germany, and failed to adequately take into account that its previous owner was a Nazi victim who had lost the Gauguin painting just a short time prior to their purchase of it. The bill of sale from Wildenstein in New York, clearly notes this fact in the Gauguin painting's provenance. Mr. Bacigalupi's explanation to the Heirs, that Jewish persecution by the Nazi's in 1939 was not well known at that time in the United States, did not impress the Heirs. They think that Jewish persecution was very well known at that time, also in the United States, and that it was well know that a flood of German Jewish refugees, who had lost their property in Germany, were fleeing Germany in order to save their lives at that time.
The Heirs also believe that the Detroit Institute of Arts, also did not adequately review this issue when they received the bequest of the van Gogh painting from Mr. Tannahill. The Heirs note the fact that the Wildenstein, New York, sales documentation with respect to the van Gogh painting also recites that it previously belonged to the Martha Nathan collection in Frankfurt am Main.
A request by the Heirs to Wildenstein for its entire files regarding this matter went unanswered and the Heirs do not believe that all of the relevent documents and information regarding this matter have been obtained.
These facts were discussed with the Museums and their counsel on Tuesday, January 24, 2006, in New York. Only a day later, in the morning of January 25, 2006, the Heirs were informed that lawsuits had been filed against them to "quiet title" and that a press release had been issued by the museums. In short, the Heirs were ambushed by a concerted effort by the Museums to avoid their
responsibilities under the principles and guidelines of the AAM and AAMD to decide the Heirs claims in a fair and equitable manner and to avoid the request of the Heirs to have this matter be settled privately by an independant art commission or arbitrator taking into account the AAM and AAMD guidelines and principles. In particular those guidelines state:
"When appropriate and reasonably practical, museums should seek methods other than litigation (such as mediation) to resolve claims that an object was unlawfully appropriated during the Nazi era without subsequent restitution." AAM Guidelines Concerning the Unlawful Appropriation of Objects During the Nazi Era, section 4(e).
In brief, the Heirs consider the Museums handling of the matter up to this point to have not followed the guidelines of the AAM and AAMD, and to have been handled more in the manner of a charade, orchestrated by the Museum Directors and their counsel.
The Heirs now call on the Museums to withdraw their lawsuits and to meet their responsibilities under the guidelines of the AAM and the AAMD by agreeing to have this matter be submitted to to an independant art commission or arbitrator who will take into account the totality of the circumstances of this matter and who will
decide it in accordance with principles of fairness and justice pursuant to the principles of the AAM, the AAMD, and the Washington Conference on Holocaust-Era Assets. The Heirs note that most major countries in Europe who have tackled this issue have spoliation commissions to which Nazi era art claims can be referred where the parties agree to do so. The Heirs believe that such an independent art commission should also be set up in the United States and that the Museums have an obligation under their stated policies to agree to submit the matter to such a independent decision maker when the parties are not able to resolve such claims by themselves. The Heirs feel that this is the only way they can obtain a fair hearing, not clouded by legal technicalities, and taking into account the moral aspects of the case.
New York, New York
February 7, 2006
For further information contact:
David J. Rowland, Esq.
Rowland & Associates
Two Park Ave., 19th Floor
New York, New York 10016
Tel. 1-212-685-5509
Fax. 1-212-685-8862
Website: www.rowlandlaw.com
Or in Europe Contact:
RA Peter Schink
Schink & Studzinski
Ostseestr. 109
10409 Berlin
Germany
Fax. 00-49-30-42851178