Houston Department of Foreign Affairs wins appeal to preserve Bellotto painting seized by Nazis

The Museum of Fine Arts, Houston, has won an appeal to preserve a Bernardo Bellotto painting seized by the Nazis during World War II. The decision by the Fifth Circuit Court of Appeals likely ends a complex saga triggered by a clerical error made by the Monuments Men when they salvaged the work and other works from a mine of Austrian salt in 1945.

The challenge of museum ownership on the board Market in Pirna (circa 1764) “has been definitively resolved,” MFA Houston representatives said in a statement. This latest decision by the court of appeal is the third to reject the heirs’ request.

The heirs of Jewish art collector Max Emden filed a lawsuit against the museum in 2021, claiming the painting was sold by the department store mogul under duress.

Although Emden moved to a private island in Switzerland in 1927, he still owned his textile trading company in Berlin and had bank accounts in Germany. His German assets were frozen and then liquidated by the Nazis. He hired Jewish dealer Anna Caspari, who was later killed by the Nazis in German-occupied Lithuania, to sell three works.

The three works, which included Market in Pirna, were sold to a German art dealer named Karl Haberstock who sold them the same day to the Reichskanzlei for the Führermuseum project. Emden’s heirs argued that the works were sold below market value.

“The MFAH had previously investigated the merits of these allegations and shared the independent international provenance investigation, which demonstrated that the allegations of forced sale, or sale at less than fair market value, were not not valid,” the museum said in its press release. “No new information has come to change our conclusion that the 1938 sale initiated by Dr. Emden was voluntary.”

But the case has not been decided on the merits of this sale. Rather, the three works were separated after the war due to clerical confusion. Two of them went to Germany and were returned to the family in 2019 after a decision by the German advisory commission found that the sale “was not undertaken voluntarily but was entirely due to the worsening of economic difficulties “.

The third, the MFA Houston painting, was accidentally labeled by the Monuments Men to be sent to the Netherlands instead of a copy of the same work that belonged to another Jewish collector named Hugo Moser. The copy was purchased by Maria Almas-Dietrich, one of Hitler’s most important art suppliers, for the Führer’s museum while he was fleeing Amsterdam. The Monuments Men had confiscated Almas-Dietrich’s collection, including the copy of Market in Pirnain 1945 and stored it at the central collection point in Munich, the same place where the Emden artworks were later kept.

As nations sought to return works of art in the aftermath of the war, the Dutch government attempted to return Market in Pirna to Moser, not knowing that the work to be returned was a copy. By the time the Monuments Men realized the error in 1949, Moser had already received the original painting.

Moser created a new provenance for the painting and sold it in 1952 to American collector Samuel H. Kress who donated it to the MFA Houston in 1961. Emden’s heirs say the original painting should be returned to them because Moser never received a valid title. .

The appeals court’s ruling marks the third time Emden’s restitution case has been thrown out. Previously, a federal district court dismissed the complaint without prejudice, allowing the heirs to refile their claim.

The district court determined that the act of state doctrine should apply to the case because the heirs blamed the errors on the Dutch government. Under the act of state doctrine, acts committed by a foreign nation within its own territory cannot be challenged in U.S. courts.

The heirs filed a new lawsuit, placing some of the blame on the Dutch government on the Dutch Art Property Foundation (SNK), which was established by the Dutch government to deal with such matters, but the district court ruled against it. still sides with the museum and dismissed the lawsuit. time with prejudices. The heirs appealed, and the appeals court again affirmed the lower court’s decision based on the principle of the act of state doctrine.

The appeals court ruled that SNK “had sufficient government attributes” and “had been recognized as an official actor” and that a decision in favor of Emden could have “an implicit negative impact on foreign relations.” The transfer of the painting to Moser also took place in the Netherlands.

“The Emdens may be right,” the court wrote. The Monuments Men may have inappropriately sent the painting to SNK, which may have improperly sent it to Moser, meaning the museum may be violating Washington Principles by refusing to return it. “But, consistent with state doctrine, it is not our duty to question the decisions of foreign nations.”

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