Houston Department of Foreign Affairs can keep Bernardo Bellotto painting seized by Nazis, appeals court rules

A three-judge panel of the Fifth U.S. Circuit Court of Appeals upheld a lower court’s dismissal of a lawsuit filed by the heirs of Jewish department store magnate Max J. Emden seeking the return of Bernardo Bellotto. Pirna market (c. 1764), which has been in the permanent collection of the Museum of Fine Arts (MFA) Houston since 1961.

The lawsuit was filed by three of Emden’s heirs in 2021 and revolves around a misidentification that led a foundation set up by the Dutch government to send the wrong painting to a claimant of Nazi loot in the aftermath of the Second World War. World War. The Fifth Circuit’s May 29 decision upheld the 2022 decision by a judge in the U.S. District Court for the Southern District of Texas in Houston, who ruled that the restitution error that occurred in the late 1940s could not be prosecuted because of the “doctrine of act of state”, according to which American courts cannot pass “judgment on the acts of the government of another (State), performed within its own territory”. If this seems like a convoluted reason not to return a Nazi-looted painting, a brief recap of the details of the case may provide some clarity.

When the Nazis came to power, Emden was forced to sell three Bellotto paintings from his collection under duress at below-market prices, including Pirna market. During this time, German art dealer Hugo Moser owned a copy of Pirna market which was painted by another anonymous artist after Bellotto’s version. When Moser fled to the Netherlands, he brought his “after Bellotto” Market in Pirna with him, but when he subsequently fled the Netherlands before the Nazi invasion, he left the painting with an art restorer in Amsterdam. Moser and Emden’s versions of Market in Pirna were eventually seized by the Nazis and intended for inclusion in Adolf Hitler’s Führermuseum project.

After the end of the war, the Men and Women Monuments recovered Emden’s three Bellotto paintings from a salt mine in Austria and Moser’s copy of Market in Pirna from another warehouse. The two versions of Market in Pirna were sent to the central collection point in Munich (MCCP). The Dutch Art Property Foundation, which the Dutch government had established to handle restitution requests, received a complaint for the copy “after Bellotto” of Market in Pirna from the Goudstikker gallery in Amsterdam. But by relaying this complaint to the MCCP, it requested the return of the painting Market in Pirna “by” Bellotto. Bellotto’s painting, which had belonged to Emden, was sent to the Netherlands. Before the Goudstikker Gallery could take possession, a competing claim was filed by Moser. Dutch authorities eventually sent the painting – the original Emden Bellotto – to Moser.

The Men and Women Monuments realized their mistake in 1949, but by then the object was no longer in the possession of the Dutch Art Property Foundation. Three years later, Moser sold it to American businessman and collector Samuel Kress, who loaned it to the MFA Houston in 1953; in 1961, the Kress Foundation donated it to the museum.

The rulings in favor of the MFA in 2022 and on appeal last week hold that because the Dutch Art Property Foundation was created by the Dutch government, its actions – even mistakenly returning the wrong painting to a claimant of Nazi loot – were actually acts of the Dutch. government and therefore outside the jurisdiction of the American courts. In their opinion, the Fifth Circuit judges wrote that “adjudicating the Emdens’ claim could have a negative impact on foreign relations, even if limited.” And that’s exactly what the state act doctrine prohibits.” In a reportan MFA Houston spokesperson said the dispute over Market in Pirna “has been definitively resolved in favor of the museum.”

In their opinion, the Fifth Circuit judges recognized that some, notably plaintiffs Juan Carlos, Michel and Nicolas Emden, might find this result unfair. “The Emdens may be right: the Monuments Men (and Women) may have inappropriately sent the By Bellotto Pirna to the (Dutch Artistic Property Foundation); the (Dutch Art Property Foundation) may have unjustifiably sent Moser the By Bellotto Pirna even if he was only entitled to the After Bellotto Pirna; and the (MFA) may be violating Washington principles by refusing to return the painting to the Emdens. But, they conclude, “it is not our role to question the decisions of foreign nations.”

In 2019, a German government panel requested the return of Emden’s two remaining Bellotto paintings to his heirs.