Nazi Victim’s Family Told to Return Artifact
Source: NY Times
A state appellate court in Brooklyn has ordered the family of a Holocaust survivor to return an ancient gold tablet to a German museum.
The decision turns on its head the familiar scenario of Holocaust victims suing to reclaim property stolen or extorted from them by the Nazis. But in this case, according to court papers, the precious 3,200-year-old Assyrian artifact had been looted, not from the survivor, but from the Vorderasiatisches Museum in Berlin, at the close of World War II.
It is not clear how the survivor, Riven Flamenbaum, came into possession of the tablet after his liberation from Auschwitz in 1945, when he was sent to a displaced persons camp in southeastern Germany.
But when Mr. Flamenbaum immigrated to the United States four years later, he arrived in New York with a wife he had met at the camp and the inscribed gold tablet, which is about the size of a passport photo.
Read more: http://www.nytimes.com/2012/06/01/arts/court-tells-holocaust-survivors-family-to-return-gold-tablet.html
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Confusious
(8,317 posts)"caused a remarkably inequitable result"
Mr. Flamenbaum’s daughter, Hannah, previously told AOL News, “It was all he had left from ‘that bitter time,’ and he wished to hand it down to his children and future generations to serve as a reminder of the brutality and decimation of his family at the hands of the Nazis.”
I fail to see what a priceless historical tablet made by Assyrians has to do with the NAZIs.
1monster
(11,012 posts)would be considered a national treasure from Iraq. Turn about is fair play.
marble falls
(57,157 posts)
dipsydoodle
(42,239 posts)The German Museum had / has authenticated right of ownership
ManyShadesOf
(639 posts)seems to be what it had to do with the Nazis
Confusious
(8,317 posts)He would have chosen something more appropriate.
ManyShadesOf
(639 posts)or deem what is "appropriate"?
maybe you know more about this story and how he obtained it, why he kept it? or when you've got nothing left, maybe gold seems "appropriate"
Confusious
(8,317 posts)"But in this case, according to court papers, the precious 3,200-year-old Assyrian artifact had been looted, not from the survivor, but from the Vorderasiatisches Museum in Berlin, at the close of World War II."
Obviously, looting a museum is wrong, and obviously it was a precious piece of history, not just a piece of gold. He obviously knew what it was or else it would have been sold as a piece of gold long ago.
What happened to him was horrible. Doesn't give him the right to do whatever he wants though, and it doesn't give him the right to loot history that belongs to all of us.
I'm sure he could have found some other piece to remind him. They were lying all over the ruins of NAZI Germany.
I keep reminders, some as simple as a bottle cap. He couldn't find one lying around?
ManyShadesOf
(639 posts)we would need to know how it came to him, what the steps were, know the whole story - which I don't, maybe you do - to make the judgments you are making. you don't know what you would do if you were him.
Confusious
(8,317 posts)The fact that he held onto to it, knowing it was a priceless historical piece, and didn't return it, is the point.
Do I know what I would do if I found something that had obvious historical value like that? I would turn it in to a museum or some other authority like that. Doesn't matter when or how. he had quite a long time to do it.
ManyShadesOf
(639 posts)to second guess holocaust survivors decisions, esp. without havin all the facts. I understand your point in the general sense.
Confusious
(8,317 posts)This isn't one.
I've had a lot of hard knocks in my life ( Though not anywhere near as bad as that ) is doesn't give me an excuse to do wrong.
I'm an adult. At some point, we have to take responsibility for our actions.
ManyShadesOf
(639 posts)being judgemental. 
you may know more about this tale than I have had time to read. my inclination would be a "do the right thing" too. the Assyrianologist posted a lot of info. Still, these stories about how it landed in THIS man's hands are complex. Do we know that he did "wrong"? Dunno, sorry, just not qualified to tell a Holocaust survivor how to behave.
Ken Burch
(50,254 posts)could possibly be comparable to surviving the Holocaust.
Please don't go there with this "wrong is wrong" bullshit.
By that logic, the U.S. Army should be guilty of vandalism for tearing down that statue of Saddam. After all, they KNEW it was Iraqi government property, and the law WAS the law.
Confusious
(8,317 posts)when it convenient to you, but then turn around and accuse me of doing wrong when it comes to the US army.
Kind of a double standard?
Ken Burch
(50,254 posts)particularly if it had been a souvenir from those who subjugated the Sioux, I'd back you up 100% on that.
Ken Burch
(50,254 posts)Considering the circumstances, it was indecent of the museum to actually SUE over this.
That's half the reason some of us find your position so galling on this.
And really, since nothing that's ever happened to you or ever COULD happen to you could possibly compare to surviving the Holocaust(or losing large chunks of your family in that horrific event)how on earth can you feel justified in passing moral judgment towards this man about an offense that, by comparison, is trivial?
What hope can we ever have for a decent future for this world if property rights are to be accepted as much of an absolute as you hold them to be? Would YOU want your kids to live in a world where property trumps humanity?
Confusious
(8,317 posts)I see a piece of history that belongs to everyone, and should be returned to the museum to be enjoyed by everyone.
You seem to see a piece of property that should be left in private hands.
Germany has also paid billions in reparations for what it did (1950 dollars, today it would be trillions), and it is going to pay more, if Israel asks.
Property looted from countries and victims has been returned by Germany, it is only right that property looted from Germany should be returned.
UNLESS you believe in special classes under the law.
Ken Burch
(50,254 posts)Israel is not the official global representative of the victims of the Holocaust, and that state is not entitled to be the sole recepient of Holocaust reparations(especially since many of Hitler's Jewish victims weren't Zionists).
(sorry for the digression-but that line points up a major problem with the European countries who have supported Israel strongly-at least some of them, like Germany, seem to have seen the offering of such support as the purchase of a latter day "indulgence", as if it got them off the hook for their deeds-not only the Holocaust, but the two milennia of misery they'd inflicted on Jews prior to that. It's offensive for any country to see support for Zionism in THAT particular light, and no, it doesn't mean what those countries did prior to 1945 no longer matters and doesn't need to be addressed).
Look, perhaps the museum had a technical right to ask for the property back. But, given WHO had taken it, it had a particular obligation to be tactful about it.
Given the circumstances, the museum wasn't entitled to be at all indignant about this. You can't assume that the Flamenbaums KNEW they were had something that somebody would see as part of the cultural patrimony. As far as they knew, it was just a trinket lifted from people who had tried their best to
And all the Flamenbaums did was to keep the thing around the house...it's not as if they sold it on Ebay...so why be so outraged about this at all? Why be so aggressive towards people who had literally been through hell on earth...THAT's what I meant by putting property before humanity...perhaps I should have said before common decency and that would have been clearer.
In any case, you have a severely case of misdirected anger going on inside you, and you might consider therapy for it.
Confusious
(8,317 posts)The family called them museum for a price check.
The descendants weren't part of the holocaust. The father was. Holocaust survivor status doesn't transfer. Just as my great grandfathers, grandfathers, uncle and fathers veteran status doesn't transfer.
As for the anger, maybe you should look into it, with all that spew about the "cultural patrimony." whatever THAT is.
PS. I think I know! cultural patriarchy = "something made up so we can justify our bad behavior"
PPs. how about this one? "we're not very good artists, so we'll make something up so we don't have to admit to ourselves that we suck. We're actually victims."
Ken Burch
(50,254 posts)they didn't KNOW that the piece had been taken FROM the museum.
After all, their father had never told them he even had the damn thing-and they didn't know, as no one in the article knows, how Mr. Flamenbaum came into possession of the tablet. We can't assume that he took it from the museum himself, or that he wound have known the provenance of the tablet)
Their call was made in total unawareness of the circumstances.
(and, frankly, buddy, it's a little icky that you insisted on working in the "they were just interested in the money" thing...that's deeply insensitive in the context...and you KNOW why.)
Also, on reading the NY Times linked article, there is no evidence that the museum ever tried any method OTHER than suing the Flamenbaums to regain possession of the tablet.
So it's not as simple as you seem to think.
Confusious
(8,317 posts)and find some older articles, thats what they say. Another judge said they could keep it, but an appeals judge overturned the decision.
Of course, I told you took look it up before, and you didn't.
The father told them many times he traded packs of cigarettes to a Russian solider for it. They even used it as collateral on a loan.
And as any cop or judge will tell you, ignorance is no excuse. Doesn't matter what the family did or didn't know then. It matters NOW. They keep trying to hold onto it.
The museum owns it, the family should return it.
You seem to want to balance some imaginary scales by doing wrong to someone else.
Ken Burch
(50,254 posts)Why do you give the Russian soldier a pass in all of this? He was the actual thief...assuming he actually stole the thing knowingly, rather than simply finding it lying on the ground amidst rubble.
And, if you read the NY Times link they are trying to hold onto it because it was their father's only memento of that horrible time. The Nazis took everything ELSE away from him...including his relatives. THAT fact alone, should cause you to dial back your sanctimony on this.
Mr. Flamenbaum was no thief...if he had been, he would never have won in the earlier court ruling. And there's no way that a museum that would have been run(at that time)by at least tacit supporters of the Reich(no anti-Nazis were allowed to hold any responsible positions anywhere in Germany in the 1933-1945 era, so it's bullshit to imply that the curators of the era were innocent)were not victims.
I strongly suspect that, if the museum really had just said "we understand why you took it...we'll even pay you for its return, which is only fair due to what you suffered...and we'll give you a credit for donating the piece" rather than just going directly to court and saying, in effect "give it back you filthy money-grubbing thieves", that the Flamenbaum family WOULD have given it back.
They had no right to treat the Flamenbaums as if they were the knowing beneficiaries of crime.
Confusious
(8,317 posts)The museum asked for it back, but they refused. The museum took it to court.
You accuse me of making judgment about the father, but you seem to making a whole hell of a lot about the family.
Repeat of the same word below.
Ken Burch
(50,254 posts)that THIS happens to whoever opens the package it's in:
(ok, ok...not LITERALLY...but, still, whoever insisted on suing to get this back would deserve that.)
property that was stolen from holocaust survivors MUST be returned. Why shouldn't things stolen from Germany be returned?
Is there a double standard here? Does it give one an excuse to steal?
Warren DeMontague
(80,708 posts)Er,ah, for starts because there's not a moral equivalency between the two situations, secondly because a lot iof property taken from holocaust VICTIMS has not and cannot be returned (try returning melted gold fillings and wedding rings to dead people, for instance)... Thats just for starters.
But even if one accepts the principle of returning historical artifacts reardless of context (i do) getting all morally indignant at this family that endured the Holocaust.... I find it a little excessive
Confusious
(8,317 posts)I'm indignant that this family thinks it has a right to keep a piece of priceless history.
Just as I'm indignant when religious radicals blow up pieces of priceless history.
Just as I'm indignant when people loot priceless pieces of history from archaeological sites so some rich asshole can admire it in his home.
I'm indignant about the holocaust being used as an excuse.
Warren DeMontague
(80,708 posts)I think it's relative, and I think context matters.
No one has blown up anything, here. There's a story, a history, and like I said, context matters. Maybe because I'm acutely aware of the men, women, and children who died in those camps, I err on the side of cutting survivors and their descendants a little bit of slack.
Confusious
(8,317 posts)Did you have a relative in those camps? Or know anyone who was?
My entire point is that it's a priceless piece of history that belongs to all of us. Cutting them slack and NOT having them return the item is a step to far for me.( seems you don't agree )
Should he have faced any criminal charges? no. Should the family? no. Should the item be returned? yes.
Being a holocaust survivor, or even a descendant, doesn't give you the right to take or keep something that belongs to everyone.
Warren DeMontague
(80,708 posts)I come from a Jewish family that had people in Germany, as a matter of fact.
Context matters. I'm not saying "no, the object should absolutely not be returned", but i think fulminating aginst these people, or second guessing/moralizing about what the family member who originally took it should have done, is misplaced.
Confusious
(8,317 posts)you didn't mean that?
I'm not fulminating, just expressing distaste with their attempts at holding onto the object when they know the circumstances of it's origin.
60 years is a long time to misplace an object. I could give a lot of leeway to a lot of things. Not to this.
Warren DeMontague
(80,708 posts)I think that a lot of stuff has taken long and interesting winding paths to return to its "rightful" home (again, a point on which some Assyrians might beg to differ, were there any around) ... I suspect that this thing will go back to Germany. So, okay. But I'm not going to spend a lot of energy being angry at the folks who, as they were high tailing it out of a Europe filled with the corpses of their friends and families, looted the thing from Nazis who got it from German Archaeologists, who looted the thing from Iraq.
Confusious
(8,317 posts)About how it was taken under agreement with the ottoman empire, the same empire that had controlled the area for a a thousand years.
By any law, national or international, they had the right to give it to Germany.
Which means the museum owns it, pure and simple.
Ken Burch
(50,254 posts)n/t.
Warren DeMontague
(80,708 posts)Sorry.
Ken Burch
(50,254 posts)and stealing from the oppressors...that's what you're missing.
You can't really defend the property rights of the Third Reich.
It's not that much different than defending the property rights of 19th Century U.S. slave owners.
Your argument might be valid if the guy had stolen this from the museum LAST WEEK, when the museum was under the control of a democratic and non-lethal German government, but that's not what we're talking about here.
Humanity trumps property.
Confusious
(8,317 posts)A museum wasn't oppressing the jews.
It wasn't a piece of property of the the Third Reich. It was a piece of property of a museum.
Hitler didn't like academics either.
And it wasn't something the third Reich made.
If humanity trumps property, as this piece is a priceless bit of human history, thus belongs to all of us and should be in a museum, not in private hands.
Ken Burch
(50,254 posts)that it was understandable that they could have done something like this at the time and in the situation, but that now it's a different era and they'd be doing a good thing to return the piece to the cultural patrimony or whatever, rather than GOING TO COURT like this was just another cynical art-theft-for-profit, I suspect the Flamenbaums probably would have handed it over.
Instead, the museum got...well, GERMAN about this. Can you now see how the museum might have got better results with a more respectful and compassionate approach?
Confusious
(8,317 posts)Look it up on the web.
But I take it being informed isn't your forte.
Spouting phrases like "cultural patriarchy" is. Whatever that is.
Don't try and explain, I don't care.
PS. I think I know! cultural patriarchy = "something made up so we can justify our bad behavior"
Ken Burch
(50,254 posts)That's the same thing as going on about "the world's cultural heritage".
(They could have proposed that the object be listed in the museum as being on long-term loan from the Flamenbaums, which might itself have made them more willing to return it).
The point is, they shouldn't have treated the Flamenbaums as if there was no difference between them and, say Cary Grant in "To Catch A Thief".
Confusious
(8,317 posts)It should be returned.
And as I thought, "cultural patriarchy" or whatever the made up phrase is, is a justification for bad behavior.
Ken Burch
(50,254 posts)You're willing to cut an extinct(and infamously corrupt)empire more slack than a survivor of one of history's worst nightmares. What the hell do you call THAT?
"You took it, and that's wrong, and that's ALL that matters" is the kind of thing a three-year-old says when she or he doesn't get her or his way.
Confusious
(8,317 posts)The Assyrian empire collapsed 2500 years ago. it was dust by the time of the Ottoman empire.
There's no one who can say they are "Assyrian." Even the people in Iraq are more Persian and Turk then anything else.
Ken Burch
(50,254 posts)Like every empire in history has stolen things from the people they've conquered.
Theft doesn't stop being theft just because time has passed.
Your fetishization of property rights as an absolute is corroding your whole value system.
Confusious
(8,317 posts)having been left there for 1500 years, with no one of any blood to claim it, can you?
It's about history and the fact we should all be able to have a chance to appreciate it. A museum is the best place for that. Allowing the family to "loan it" and keep ownership gives rights over the piece they shouldn't have. They were looking into the price of the object, hoping to sell it. The next owner might not allow the museum to display it, or even keep it.
As far as the property rights thing, there is no "victimhood" clause in the laws. Just because something bad happened to you doesn't give you the right to do bad to other people. Or keep something that doesn't belong to you.
You also seem to be making judgments not in evidence, and also making judgments about my value system which you know nothing about. The evidence I do give you ignore in favor of stuff you make up.
Ken Burch
(50,254 posts)That museum is simply the place where the tablet ended up. Most of the objects in most of the world's museums, when you get right down to it, WERE basically stolen from the places where they were found.
Ownership cannot be considered an absolute.
And I read the NY Times link...nothing in the article supported the claim that the museum approached the Flamenbaums politely and respectfully to return the object BEFORE taking them to court. Also, the article made it clear that there was no explanation for HOW Mr. Flamenbaum came to possess the tablet, OR offered any evidence that he stole it at all(he could easily simply have found it or somebody could simply have sold or given it to him, without his knowing the tablet's previous location in the museum...so you are way the hell out of line in acting as if Mr. Flamenbaum himself was nothing more than a common thief. Also, since he had never told his family that he had the tablet at all(they found it among his belongings after his death)the Flamenbaums had no way of knowing, at the time that they called the museum, that the tablet was ever in the museum's collection at all...
Your harshness towards the Flamenbaums, therefore, is completely unjustified. And if Mr. Flamenbaum truly were a knowing thief, the courts would never ruled in his favor at ANY level(as they did before this appeals court ruling was delivered).
Confusious
(8,317 posts)It's all just an illusion? So we really shouldn't make them give it back?
What about all that shit about the marbles and the all the stuff that was looted from other countries, the theft of the Americas from the native Americans?
Total bull on you part? It only matters when it suits you? Yea that's a way to run the world.
Maybe we should get you a throne so you can pass down your judgments on the rest of us.
Hypocrite.
Ken Burch
(50,254 posts)It wasn't vandalism for the Army to destroy Saddam's statue. And it isn't intentional theft that the Flamenbaums had this tablet.
"Theft is theft is theft" is an inherently right-wing position, btw. It's right up there with Anatole France's famous(and intentionally ironic)quote that "The law, in its majestic equality, forbids the rich and the poor alike to sleep under bridges, to beg in the streets, and to steal bread". It's the kind of thing that made Inspector Javert waste his own life tormenting Jean Valjean for having taken that freaking loaf of bread. Don't put your soul in that kind of a straightjacket. When a moral absolute inflicts suffering and causes absurdity, it ceases to be moral at all.
Ken Burch
(50,254 posts)between returning property that was taken by the Gestapo from Hitler's victims TO the surviving victims or their descendants, on the one hand, and returning property that a surviving victim managed to grab FROM the people that nearly killed that survivor and DID kill most of the people that survivor would have known.
I'm sorry, but property rights can't be THAT freaking absolute.
Confusious
(8,317 posts)Is a priceless piece of history that belongs to everyone, not a country or ideology.
And even though much of the country believed and followed hitler, there were those who didn't, and lost their lives because of it.
http://en.wikipedia.org/wiki/White_Rose
Oh, and to top it off, you're wishing death on people who had nothing to do with NAZI germany, how nice.
Ken Burch
(50,254 posts)it SHOULD go back to Iraq. Sending it back to Germany is saying it was right for the Germans to spirit it out of Iraq(we can assume that it didn't get to Germany by legitimate means, given the Europeans and how they usually took the artifacts of other countries). It was theft that the artifact was IN Germany, for God's sake.
And I said I didn't really mean it about the face melt thing..but still, it's not honorable for Germany, of all places to demand the artifact back, OR to demand it from the person who took it. For them to do that is to essentially say that what this man did in stealing the piece from a dishonorable regime is worse than the Holocaust itself.
Confusious
(8,317 posts)It was taken under an agreement with the ottoman empire where they got a portion of the discoveries. There is a legal agreement in writing saying they own that particular piece of history.
Now, seeing as the ottoman empire had controlled the area for around a thousand years, do you not think they had a right to do that?
Do legal agreements just go poof when you decide they do?
PS. what do you call it when someone automatically assumes you're a criminal because of your race? I forgot.
PPS. So I can steal anything from Germany that was IN Germany during the NAZI era? Nice.
PPPS. That particular piece came to Germany while the kaiser still sat on the throne of the German empire.
Ken Burch
(50,254 posts)Last edited Sat Jun 2, 2012, 11:02 PM - Edit history (1)
It's ok because they took it through an agreement with an extinct EMPIRE?
(and do you defend the British Empire stealing the Elgin Marbles, while you're at it? or our own North American Manifest Destiny Empire stealing hundreds of thousands of First Nations artificacts, and stealing the continent while they were at it? Is it "Empire makes right" with you?)
You don't really believe that the Ottomans bought it from the Mesopotamians af fair market price(including shipping and handling)?
Oh, and Germany under the Kaiser wasn't exactly Disneyland(or maybe it was, considering how far to the right Walt Disney was).
Sorry if I can't put property before humanity.
Confusious
(8,317 posts)Saying it' OK to take anything you want, even priceless pieces of history that belong to all of us. That is putting property before humanity.
"
and do you defend the British Empire stealing the Elgin Marbles, while you're at it? or our own North American Manifest Destiny Empire stealing hundreds of thousands of First Nations artificacts, and stealing the continent while they were at it? Is it "Empire makes right" with you?) "
Nope. Pretty bad try at a straw man. Oh, and I know all about the theft of the Americas. My grandmother was Sioux. This is not the same thing.
"You don't really believe that the Ottomans bought it from the Mesopotamians at fair market price"
They were the controlling power for a thousand years. Before that the Byzantines, before that the Persians. At the time, it was the Ottoman empire. They were the Mesopotamians. The Ottoman empire had the right to give it to Germany.
Under pretty much any law, National or international, that constitutes ownership.
(Oh, as for marbles example, those were snuck out of the country by the English. They knew they were stealing. They should be returned. Not the same thing.)
"Oh, and Germany under the Kaiser wasn't exactly Disneyland"
How do you know? you don't exactly seem to up on history. I doubt any place in the world would live up to the "disneyland" standard.
PS. For your info:
Bismarck built on a tradition of welfare programs in Prussia and Saxony that began as early as in the 1840s. In the 1880s he introduced old age pensions, accident insurance, medical care and unemployment insurance that formed the basis of the modern European welfare state. He came to realize that this sort of policy was very appealing, since it bound workers to the state, and also fit in very well with his authoritarian nature. The social security systems installed by Bismarck (health care in 1883, accident insurance in 1884, invalidity and old-age insurance in 1889) at the time were the largest in the world and, to a degree, still exist in Germany today.
You are wrong. not surprising.
Warren DeMontague
(80,708 posts)I say, let the Flamenbaums keep it.
dipsydoodle
(42,239 posts)In cases where the property of Jewish people was stolen before and during the holocaust that property should be returned to its rightful owner and in other cases like this the property should also be returned to its rightful owner.
1monster
(11,012 posts)to take it out of Iraq?
dipsydoodle
(42,239 posts)of a substantial number of the world's museums including the mummies etc at The Smithsonian . If at later dates claims were to be made by such nations they would be treated on a separate basis and don't excuse this current issue.
ManyShadesOf
(639 posts)
Canuckistanian
(42,290 posts) 
Wabbajack_
(1,300 posts)None of their business really.
cstanleytech
(26,317 posts)should be returned to the museum just like any item stolen from Jewish families should be returned to the surviving heirs even though its been over 70 years in some cases.
marble falls
(57,157 posts)Wabbajack_
(1,300 posts)If I'm that family this object turns up "stolen" before I give it up.
marble falls
(57,157 posts)snooper2
(30,151 posts)wabbits? 
Confusious
(8,317 posts)Seriously.
boppers
(16,588 posts)Wow.
zbdent
(35,392 posts)the world ...
I'd say "We will return this artifact to its rightful owner ... the 'Assyrian' people it was taken from." (meaning the current defined country it was originally from).
Imagine if someone deported from the U.S. and in serious legal trouble if they returned was found to have stolen Lincoln's watch ...
Confusious
(8,317 posts)Iraq was a creation of the British Empire.
The people who had controlled the territory for a thousand years was the Ottoman Empire, and they gave permission.
Those legal agreements still stand.
Ken Burch
(50,254 posts)We get where you stand.
MjolnirTime
(1,800 posts)You stand where you stand regardless of facts.
Running on pure emotion.
You really should be ashamed of yourself for trying to make people feel like they're Nazis for questioning whether theft is ok in this situation.
Why don't we just take it to the furthest extreme possible, right?
Assyriologisticks
(1 post)Hi all! I'm an Assyriologist in training and just saw this and thought I'd put my two cents in. This tablet was excavated in 1913 by the German Oriental Society with official permission from the Ottoman Empire at the time from the site of Kar Tukulti Ninurta, just north of the ancient Assyrian capital, Ashshur (pronounced ahsh-shur). Tukulti Ninurta was a king right at the end of the Bronze Age who defeated the formerly great Hittite empire and was subsequently killed by his sons in a coup plot. This tablet was a dedication inscription to the high god Ashshur, whose cult Tukulti Ninurta transferred from the ancient capital to his new city. So it is historically a very important text.
Going back to the agreement, foreign excavators had the right to take back a certain amount of the find as "partage" with the rest going to the Archaeology Museum that's now in modern day Istanbul. As WWI broke out, this tablet didn't make it's way to the Vorderasiatisches Museum until 1926; at which time the Ottoman Empire no longer existed, but the Mandate government recognized the legally binding agreement from 1913. This is the norm in international antiquity's law; to recognize any legal agreements made at the time of excavation of the artifact as legally standing. So, since the Turkish government is the successor to the Ottoman government, if it were to be returned, it would go to Istanbul.
However, the Ushak scandal created a lot of mistrust towards Turkish museum practices. This scandal was where the Turkish Government sued the New York Met to return the treasure of the Lydian king Croesus, who was famously wealthy. The Met lost and the treasure was returned to Turkey; however, sometime in the 2000's, the director of the museum replaced some of these priceless artifacts with fakes and sold the real ones on the blackmarket. The scandal broke in 2006 and since that time courts and museums have often refused to loan or return items to Turkey.
Now, as for this item going to Iraq; that would be even more problematic. Iraq is still a very unstable country, and recall as I said, that this tablet was legally excavated and exported. There was no theft here; although it may seem that way from a certain jaundiced perspective, legal contracts are legal contracts.
Mention was made of returning it to the people to whom it belonged. Interestingly enough, this would not be the people of Iraq as a whole, but the modern Assyrians. They still exist as a minority in Northern Iraq/de facto Kurdistan now; however, since the war *cough thanks a lot Bush cough* they and other Christian minorities in the country have been severely persecuted even though Kurdistan has been relatively more peaceful for Christians than Baghdad or elsewhere in Iraq, and when the Iraq Museum in Baghdad was looted, the looters almost wholly focused on the pre-Islamic antiquities. So there is no guarantee if it is returned to Iraq or the Kurdish regional government, it would be protected. Interestingly enough, there is a large Assyrian diaspora population in Michigan and California.
So, now to the specific situation as to how it got into Flamenbaum's possession. Legally, I understand that the courts of New York first found the Vorderasiatisches Museum's claim to it had lapsed due to the law of laches, in that they hadn't published post-WWII that it had been stolen. I think we can all agree that the situation in Berlin post-WWII, with the city occupied by Russia then split between the allies was sheer chaos at best. Some may be swayed by the fact that Mr. Flamenbaum was a Holocaust survivor; however, in the original ruling and in this one, that was not found to be relevant legally in any sense; and in my own way, I have to agree with that. I think the media shouldn't have put the issue of him being a Holocaust survivor in the headline, as that was not what the Museum was disputing. The dispute was that this tablet was looted from Berlin sometime in 1945-6 and thus rightfully belongs to the Museum under their agreement of partage, see above. Mr. Flamenbaum or his descendants aren't being accused of theft but merely possessing property that under current international antiquities law, the 1970 UNESCO Convention, belongs to the museum. The relevant wording is "property stolen from a museum or a religious or secular public monument or similar institutions provided that such property is documented as appertaining to the inventory of that institution," should be repatriated and that is definitely the case here.
These are just my thoughts and some of the background information on this story that I think is relevant to understanding this specific case.
virgdem
(2,126 posts)very interesting background info on this.
dixiegrrrrl
(60,010 posts)Much appreciated.
xocet
(3,871 posts)If a person were to want to read up on the history of Tukulti Ninurta and the conflict with the Hittites, to what reference should one turn? Were there ever treaties draw up between the Hittites and Tukulti Ninurta?
I have read through http://www.amazon.com/Hittite-Diplomatic-Texts-Second-Beckman/dp/0788505513, but don't recall a mention of Tukulti Ninurta.
Thanks again for such an informative post.
dipsydoodle
(42,239 posts)
lunatica
(53,410 posts)DU attracts the oddest people! It's what makes it worthwhile.
azurnoir
(45,850 posts)would UNESCO laws be applicable anymore, as the US has withdrawn from UNESCO over the Palestinians being admitted as members?
welcome to DU
happyslug
(14,779 posts)Last edited Mon Jun 4, 2012, 04:41 PM - Edit history (7)
http://www.nycourts.gov/reporter/3dseries/2012/2012_04165.htmThis appears to be a FIGHT over inheritances. the owner's son and executrix (Unclear in the opinion of the Court of Appeals who the executrix is, but in the actual decision of the trial court she is the daughter of the decedent). Into that fight appeared the Museum who claimed the tablet belonged to them. Thus this is a fight in court between heirs, that the Museum intervened in:
Decided on May 30, 2012
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE DIVISION : SECOND JUDICIAL DEPARTMENT
PETER B. SKELOS, J.P.
RANDALL T. ENG
ARIEL E. BELEN
JEFFREY A. COHEN, JJ.
2010-04400
In the Matter of Riven Flamenbaum, deceased. Vorderasiatisches Museum, appellant-respondent, Hannah K. Flamenbaum, respondent-appellant; Israel Flamenbaum, objectant-respondent. (File No. 328146)
Hamburger, Weinschenk & Fisher, New York, N.Y. (John C. Fisher of counsel), and Dunnington, Bartholow & Miller, LLP, New York, N.Y. (Raymond J. Dowd and Luke McGrath of counsel), for appellant-respondent (one brief filed). Jaspan Schlesinger, LLP, Garden City, N.Y. (Steven R. Schlesinger and Seth A. Presser of counsel),
for respondent-appellant. Reilly & Reilly, LLP, Mineola, N.Y. (David T. Reilly of counsel), for objectant-respondent.
DECISION & ORDER
In a probate proceeding in which Hannah K. Flamenbaum, as executor of the estate of Riven Flamenbaum, petitioned to judicially settle her final account of the estate, the Vorderasiatisches Museum appeals from an order of the Surrogate's Court, Nassau County (Riordan, S.), dated March 30, 2010, which, after a hearing, denied its claim for the return of certain personal property in the possession of the estate of Riven Flamenbaum as barred by the doctrine of laches, and Hannah K. Flamenbaum, as executor of the estate of Riven Flamenbaum, cross-appeals, as limited by her brief, from so much of the same order as determined that the Vorderasiatisches Museum had met its prima facie burden of proving legal title or a superior right of possession to the subject property.
ORDERED that the cross appeal is dismissed; and it is further,
ORDERED that the order is reversed, on the law, with costs, the claim of the Vorderasiatisches Museum for the return of certain personal property in the possession of the estate of Riven Flamenbaum is granted, and the matter is remitted to the Surrogate's Court, Nassau County, for further proceedings including the entry of a decree, inter alia, directing Hannah K. Flamenbaum, as executor of the estate of Riven Flamenbaum, to turn over the subject property to the Vorderasiatisches Museum.
The Vorderasiatisches Museum (hereinafter the museum) seeks to recover from the estate of Riven Flamenbaum (hereinafter the estate) a small inscribed gold tablet (hereinafter the tablet) excavated prior to World War I by a German team of archaeologists from the foundation of [*2]the Ishtar Temple, around the city of Ashtur, in what is now northern Iraq and was then part of the Ottoman Empire. The tablet, which describes the construction of the Ishtar Temple, dates to the reign of King Tukulti-Ninurta I of Assyria (1243-1207 BCE).
After the excavations ended in 1914, the tablet and other artifacts were transported to Basra, Iraq, and loaded on a freighter bound for Germany. With the outbreak of World War I, the freighter was forced to stop in Lisbon, Portugal, where the items were stored until 1926. The tablet eventually arrived in Germany in 1926 and ultimately was put on display in the museum from 1934 until the outbreak of World War II in 1939, when it was inventoried and placed in storage. The tablet was discovered to be missing from the museum's inventory sometime around the end of the war in 1945.
In 2003, Riven Flamenbaum died in possession of the tablet. Neither his will nor the accounting filed by the executor of his estate made specific mention of the tablet. During the instant accounting proceeding, Riven Flamenbaum's son, Israel Flamenbaum, filed objections to the accounting and informed the museum of the possession of the tablet by the estate, which was the first time since 1945 the museum had direct knowledge of the tablet's whereabouts. Shortly thereafter, the museum filed a notice of appearance and claim with the Surrogate's Court seeking to recover the tablet. After a hearing, the Surrogate's Court found that the museum established its prima facie burden of proving legal title or a superior right of possession to the tablet, but that its claim was barred by the doctrine of laches. The museum appeals and Hannah K. Flamenbaum, as executor of the estate of Riven Flamenbaum, cross-appeals.
For the executor to establish, on behalf of the estate, an affirmative defense on the basis of the doctrine of laches, she must demonstrate that the museum failed to exercise reasonable diligence to locate the tablet and that such failure prejudiced the estate (see Solomon R. Guggenheim Found. v Lubell, 77 NY2d 311, 321). The executor did not establish that the museum failed to exercise reasonable diligence to locate the tablet (id.; cf. Bakalar v Vavra, 619 F3d 136, 147). The executor's contention that the museum failed to exercise reasonable diligence by not reporting the tablet stolen to law enforcement authorities or listing it on an international stolen art registry is not, under the circumstances of this case, dispositive. The executor's argument that, had the museum taken such steps, the tablet would have surfaced earlier, is mere conjecture and, moreover, is not supported by expert or other evidence.
In any event, the executor also did not demonstrate that the museum's failure to report the tablet as missing to authorities or list it on a stolen art registry prejudiced the estate in its ability to defend against the museum's claim (see generally Bakalar v Vavra, 619 F3d at 140-141; Kunstsammlungen Zu Weimar v Elicofon, 678 F2d 1150, 1164; cf. Matter of Peters v Sothebys's Inc., 34 AD3d 29, 38; Wertheimer v Cirker's Hayes Stor. Warehouse, 300 AD2d 117). Further, there is no proof that the estate changed its position to its detriment because of the delay (see Rivers v Rivers, 35 AD3d 426, 428). Moreover, the equities favor the return of the tablet to the museum over its retention by the estate. Accordingly, the Surrogate's Court should have granted the museum's claim against the estate for the return of the gold tablet and directed the executor, on behalf of the estate, to return the tablet to the museum. We therefore remit the matter to the Surrogate's Court, Nassau County, for further proceedings including the entry of a decree, inter alia, directing the executor to turn over the subject property to the museum.
The executor's cross appeal on behalf of the estate must be dismissed, as the executor challenges only the Surrogate Court's findings of fact and conclusions of law that the museum met its prima facie burden of proving legal title or a superior right of possession to the subject gold tablet in the possession of the estate, which are not independently appealable (see Ramirez v City of New York, 90 AD3d 1009; Granata v City of White Plains, 88 AD3d 948, 949; Verderber v Commander Enters. Centereach, LLC, 85 AD3d 770; Matter of Noelia T., 70 AD3d 957; Lester & Assoc., P.C. v Eneman, 69 AD3d 906; Zoref v Glassman, 44 AD3d 1036; Clark v Weiner, 254 AD2d 322). To the extent that, in light of our determination on the appeal, the executor's argument made on the cross appeal could be viewed as an alternative ground for affirmance (see Parochial Bus Sys. v Board of Educ. of City of N.Y., 60 NY2d 539, 545), such argument is without merit as the museum [*3]established that it had legal title and a superior right of possession to the tablet (see generally Solomon R. Guggenheim Found. v Lubell, 153 AD2d 143, 153, affd 77 NY2d 311).
The executor's remaining contentions are either unpreserved for appellate review or without merit.
SKELOS, J.P., ENG, BELEN and COHEN, JJ., concur.
http://www.nycourts.gov/courts/ad2/calendar/webcal/wc20120529.html
Monthly posting:
http://www.nycourts.gov/reporter/slipidx/aidxtable_2.shtml
Nassau County is under the "Second Judical Department"'s court of Appeals:
http://www.courts.state.ny.us/courts/ad2/index.shtml
Here is the Actual Opinion of the Surrogort's court's that was REVERSED by the Court of Appeals decision above. It is from Lexis, a site you have to have an account to use, but the actual opinion is NOT copy-writable thus I am putting the entire opinion here, less the copy-written Lexis references and other additions
An ancient gold tablet, discovered during archaeological excavations in 1913 in the Ottoman Empire, disappeared from a Berlin museum in the immediate aftermath of World War II and reappeared almost 60 years later in the safe deposit box of a Holocaust survivor in Great Neck, New York. Before the court today is a claim filed on behalf of the Vorderasiatisches Museum of the Federal Republic of Germany against the estate of Riven Flamenbaum for the return of that gold tablet. For the reasons set forth below, the claim is denied.
Historical Background
During excavations around the city of Ashur, now Qual'at Serouat, Iraq, during the early years of the twentieth century, a German team of archaeologists led by Dr. Walter Andrae discovered a small inscribed gold tablet. This tablet, sometimes referred to as a coin or amulet but in actuality the equivalent of a modern-day construction document, was found in the foundation of the Ishta Temple and dates to the reign of the Assyrian King Tukulti-Ninurta I (1243-1207 B.C.E.). With the conclusion of the excavations in 1914, the gold tablet and other artifacts were transported to Basra and loaded on a freighter bound for Germany. The outbreak of World War I forced the freighter to change course for Lisbon, Portugal, where the items were stored until 1926. The artifacts were then released and shipped to a national museum in Berlin. The gold tablet was inventoried, assigned the number VA Ass 994 and was placed on display by the museum, beginning in 1934. Five years later, in the looming shadow of World War II, the museum was closed, and the gold tablet, along with other antiquities and works of art, was placed in storage. At the end of the war, it was discovered that the tablet was no longer in the museum, as reflected in a 1945 inventory. Today, the gold tablet is among the assets of Riven Flamenbaum's estate.
Procedural History
On March 10, 2006, Hannah K. Flamenbaum filed her account as executor of the estate of her father, Riven Flamenbaum. Mr. Flamenbaum died on April 3, 2003, a resident of Great Neck, leaving three children surviving, viz., Hannah (petitioner herein), Israel and Helen, all of whom are named in decedent's will, dated April 27, 1971, as equal residuary beneficiaries. The accounting petition names no other interested parties. The record reflects that Israel was properly served with an accounting citation while Helen filed a knowledgeable waiver and consent.
Israel (objectant herein) filed multiple objections to the account on May 25, 2006, one of which is that the executor failed, in schedule A of her account, to properly account for decedent's coin collection. Objectant states that the decedent possessed, among other gold coins, "one item identified as a 'gold wafer' which is believed to be an ancient Assyrian amulet and the property of a museum in Germany which has notified objectant's attorney of its claim." A copy of an e-mail dated May 19, 2006 is attached to the objections. It reflects that Israel's attorney had notified the Vorderasiatisches Museum in Berlin about the executor's possession of the "gold tablet." A notice of appearance on behalf of the museum (claimant herein) and a notice of claim for the gold tablet were filed with the Surrogate's Court on October 5, 2006. Pursuant to a subsequent court conference in connection with the executor's accounting and the claim filed on behalf of the museum, it was decided that the court would determine the validity and enforceability of the claim as a preliminary step in the accounting proceeding.
Claimant filed a note of issue on January 22, 2008, but in a decision issued by this court on May 27, 2008 (decision No. 66), the court granted the estate's motion to vacate claimant's note of issue on the grounds that there were special circumstances warranting additional discovery. In a second decision, issued on September 18, 2008 (decision No. 615), the court declined to sign an order to show cause brought by objectant concerning the valuation of decedent's coins and other property, stating that the ownership of the gold tablet would first be tried as a discrete issue, prior to the trial on the issue of valuation and the other objections to the executor's account. A second note of issue was filed on January 7, 2009.
A hearing was held before this court on September 17, 2009. The director of the museum, Dr. Beate Salje, was the sole witness to testify at the hearing. The following exhibits, numbered 1 through 7, were admitted into the record: (1) the gold tablet; (2) a copy of the registration book showing the 1926 entry of VA Ass 994; (3) a picture of VA Ass 994; (4) excerpts from Dr. Walter Andrae's diary from the 1903-1914 excavations; (5) a report from Dr. Eckart Frahm, a professor of Assyriology at Yale University, dated August 17, 2006, confirming the authenticity of the gold tablet discovered in the decedent's estate; (6) Dr. Eckart Frahm's curriculum vitae; and (7) a color photo of the gold tablet. Following the proceeding, post-trial briefs and replies were submitted.
Analysis
Claimant seeks recovery of the gold tablet currently in the possession of the estate of Riven Flamenbaum. In response, the estate has raised the following defenses, which the court will address seriatim:
(A) the proceeding is barred by claimant's failure to file objections to the executor's account;
(B) claimant's rights were lost under the doctrine of spoils of war;
(C) claimant failed to meet its burden of proving legal ownership or a superior right of possession;
(D) the claim is barred by the statute of limitations; and
(E) the claim is barred by the doctrine of laches.
(A) Failure to File Objections
[1] The first argument put forth by the executor is that the museum's failure to file and serve objections to the account is fatal to the claimant's proceeding. The executor's final account was filed on March 10, 2006, at which time, as reflected in schedule D, there were no outstanding claims filed against the estate. Accordingly, the museum was not named as a party to the accounting proceeding nor did it receive service of a citation.
After the museum was advised of the estate's possession of the gold tablet, counsel for the museum appeared on the citation return date and subsequently filed a notice of appearance and notice of claim. As conceded in the estate's post-trial memorandum, claimant properly followed the procedure set forth in SCPA 1803, and its claim was then deemed rejected, pursuant to SCPA 1806 (3), by the fiduciary's failure to accept or reject the claim within 90 days from the date of its presentation. SCPA 1808 (1) provides that HN1"whenever a fiduciary rejects a claim … all issues relating to the validity and enforceability of the claim shall be tried and determined upon the judicial settlement of his account." HN2Once a claim is filed and rejected, it is an issue to be decided by the Surrogate in the accounting proceeding, unless the claimant timely commences an action in another court (Matter of Schorer, 272 NY 247, 251, 5 NE2d 806 {1936}). While the statute provides that a claimant may file objections, it is the presentation of the claim under SCPA 1803 that serves as claimant's institution of a proceeding for the determination of the claim. Accordingly, claimant's rights in this proceeding are not affected by its failure to file objections.
(B) The Spoils of War Doctrine
[2] The executor argues that the spoils of war doctrine applies, based upon the possibility that the former Union of Soviet Socialist Republics acquired the gold tablet along with other museum artifacts following the end of World War II. In support of this position, the executor cites the testimony of the museum director at the hearing. Dr. Salje testified that Russian troops took valuables out of the museum at the conclusion of World War II, and returned some, but not all, of the objects in 1957 (transcript at 73). She further testified that the museum has no record or list of the objects taken by the Russian troops, which may have included the gold tablet (transcript at 73-74). The estate claims that under the applicable laws of the Soviet Union and its successors in interest, cultural property taken by Russian troops during the occupation of Berlin after World War II was lawfully transferred from one sovereign to another and that this taking of the gold tablet by Russian troops extinguished the rights of the museum pursuant to international law. Thus, a party subsequently acquiring the tablet could obtain good title and transfer good title to others.
The museum maintains, however, that the spoils of war doctrine does not affect its right to the tablet because international authorities as well as the Hague Convention of 1907 forbid pillaging and plundering. Among other cases, the museum cites Menzel v List {49 Misc 2d 300, 267 NYS2d 804 {Sup Ct, NY County 1966}, mod 28 AD2d 516, 279 NYS2d 608 {1st Dept 1967}, partially revd on the issue of damages only 24 NY2d 91, 246 NE2d 742, 298 NYS2d 979 {1969}), a replevin action for recovery of a painting confiscated by the Nazis. In Menzel, the court distinguished illegal plunder and pillage from lawful booty, the latter referring to conquered objects taken for military operations (id. at 305).
In reviewing the executor's assertion that the tablet was taken by Russian troops, the court notes that support for the estate's theory is largely circumstantial; the estate has not introduced evidence to raise this theory above the level of conjecture. However, as discussed more fully below, the estate's inability to present relevant proof in response to a claim filed more than 60 years after an event may be considered in the context of laches.
The court finds that the estate has not adequately established facts upon which the court might consider the applicability of the spoils of war doctrine. Consequently, the court need not address the complex international law issues and conventions raised by learned counsel in this matter.
(C) Burden of Proof and Title
[3] In order to prevail in an action for replevin, a claimant bears the burden of proof to show legal title or a superior right of possession (Batsidis v Batsidis, 9 AD3d 342, 778 NYS2d 913 {2d Dept 2004}; Matter of Barett, 82 NYS2d 137 {Sur Ct, Westchester County 1948}). The executor argues that despite the museum's control of the tablet in the years prior to 1945, title to the tablet during that period of time may actually have rested with Turkey, which had dominion over the geographical area of the excavations. After World War II, the estate maintains that title may have been held by the Union of Soviet Socialist Republics, pursuant to the spoils of war doctrine, discussed above. On this basis, the estate asserts that the museum never had legal title to the tablet and therefore cannot have an immediate superior right of possession, which is required to successfully bring an action in replevin.
The museum disputes this argument. Claimant established by testimony and documentary evidence that an agent for the museum discovered the gold tablet during an authorized excavation of the city of Ashur in 1913, after which the tablet was transferred to the museum and remained there for 19 years until its disappearance at the end of World War II. The museum maintains that in connection with its replevin action it need not prove title superior to anyone other than the estate.
The court agrees with claimant that it need only prove that the museum's right to the tablet is superior to that of the estate (77 CJS, Replevin § 38). HN4"[P]laintiff need not establish good title against the whole world, but need only show good title as against the defendant" (id. § 23). The estate's claim that a third party might have a claim to title is not a valid defense to the claim (id. § 40). The court finds that claimant met its initial burden of proof based upon the testimony and evidence introduced at the hearing.
(D) Statute of Limitations
{4} The parties agree that pursuant to CPLR 214 (3), the applicable statute of limitations in a replevin action is three years; the parties disagree on whether the statute began to run in 1945, at the time the tablet initially disappeared, or 61 years later, when claimant's demand for the tablet was made and refused. Under New York law, a cause of action to recover a chattel against a party who has lawfully obtained the property arises not when the property is initially taken but, rather, when there is a demand for the return of the property and the demand is refused (the demand rule) (see Solomon R. Guggenheim Found v Lubell, 77 NY2d 311, 569 NE2d 426, 567 NYS2d 623 {1991}; see also Menzel v List (49 Misc 2d 300, 304, 267 NYS2d 804 {Sup Ct, NY County {1966}, mod 28 AD2d 516, 279 NYS2d 608 {1st Dept 1967}, partially revd on the issue of damages only 24 NY2d 91, 246 NE2d 742, 298 NYS2d 979 {1969}; Kunstsammlungen Zu Weimar v Elicofon, 678 F2d 1150 {2d Cir 1982}). The museum filed its claim within three years after the estate rejected its demand. Accordingly, this proceeding is not barred by the statute of limitations. This approach does not mean, however, that in New York, where application of the demand rule is generally protective of owners (77 Am Jur Proof of Facts 3d, Proof of a Claim Involving Stolen Art or Antiquities § 32, at 322-325), an original owner may be lax in searching for missing or stolen property or may delay unreasonably in making a demand. The owner must be diligent, because even where the statute of limitations has not run, the claim may be barred by the doctrine of laches (Solomon R. Guggenheim Foundation v Lubell, 77 NY2d 311, 321, 569 NE2d 426, 567 NYS2d 623 {1991}).
(E) The Doctrine of Laches
[5] The doctrine of laches is an equitable defense based on an unreasonable delay by a victim in bringing a claim, which in turn causes prejudice to the possessor (Czartoryski-Borbon v Turcotte, NYLJ, Apr. 28, 1999, at 27, col 2 {1st Dept}). The executor asserts that laches bars the museum's claim. In support of the application of this equitable remedy, the executor cites the conduct of the museum, which took no steps to report the tablet missing or to investigate or attempt to recover the tablet from the time it was discovered absent from the museum in 1945 until the present action was commenced in 2006. The tablet was never reported to any legal authority in any country as stolen; it was never listed as missing on any international art registry. Even after the museum learned in 1954 that the tablet was seen in the hands of a New York dealer, the museum made no attempt to contact the dealer, the New York City Police Department or Interpol or to otherwise seek recovery of the tablet. Instead, the museum allowed an additional 51 years to pass before reporting the tablet missing or making inquiry as to its whereabouts.
In Solomon R. Guggenheim Found. v Lubell (77 NY2d 311, 569 NE2d 426, 567 NYS2d 623 {1991}), the Court of Appeals considered whether a failure by the Guggenheim Museum to take reasonable action to locate a missing work of art over the course of 20 years was relevant to defendant's (a) statute of limitations defense and (b) defense based upon laches. The court specifically noted that the Guggenheim Museum failed to "inform other museums, galleries or artistic organizations of the theft, and additionally, did not notify the New York City Police, the FBI, Interpol or any other law enforcement authorities" (id. at 315-316). While the court refused to impose a duty of diligence on the museum in the context of the statute of limitations defense, it noted that the lack of reasonable diligence would be considered by the trial judge in connection with laches (id. at 321).
In defense of the museum's failure to act, claimant cites Sotheby's, Inc. v Shene (2009 U.S. Dist. LEXIS 23596, 2009 WL 762697 [SD NY 2009]), which found no grounds for laches despite the fact that claimant waited 60 years to begin pursuing its claim (2009 U.S. Dist. LEXIS 23596, {WL} at *4). However, in that case, the court found that claimant's lack of action stemmed from its reasonable but erroneous belief that the object had been destroyed, noting that claimant only learned, 60 years later, that the object still existed, at which time it promptly took action to recover it (id.).
The museum argues that in the period immediately following World War II, its delay in searching for the gold tablet or reporting it stolen was entirely reasonable in the context of the political and financial restraints imposed by the museum's geographical location in East Berlin, which shortly thereafter became a part of the German Democratic Republic, a Soviet satellite state. However, claimant's post-trial brief cites Kunstsammlungen Zu Weimar v Elicofon (678 F2d 1150 [2d Cir 1982]), which also involved a claimant museum located in the German Democratic Republic in 1945. The contrast between the conduct of the plaintiff museum in Elicofon, in which the court returned the paintings, with that of the claimant in the case at bar, is striking. As described by the court in Elicofon, the director of that museum "discovered the theft [in 1945], immediately reported the theft and thereafter engaged in diligent efforts to locate the paintings. These efforts included contacting various German museums and administrative organs, the Allied Control Council, the Soviet Military Administration, the United States State Department, and the Fogg and Germanic museums at Harvard (which were active in locating stolen art), all to no avail" (id. at 1156).
In Elicofon, the museum's immediate, diligent and ongoing search for the missing artwork precluded its opponent from successfully asserting a laches defense. Moreover, the political justification offered by claimant for its failure to act after World War II has no application once Berlin was reunified. In the years subsequent to Germany's reunification in 1989, the record reflects that the museum still made no effort to report the tablet missing or stolen.
The application of laches must be based upon the particular facts and circumstances of each case. The estate established by the museum's own admission that the disappearance of the tablet was only noted in the museum's internal records; it was not reported to authorities or listed on any registries. Further, although counsel for the museum repeatedly asserts that claimant had "no inkling of the whereabouts of the Object until … 2006" (post-trial brief dated Nov 23, 2009, at 11), the evidence shows that the museum took no action after being given information about the tablet's whereabouts in 1954. It is not the length of the delay that is dispositive; rather, the issue is whether the delay was reasonable under the circumstances (Solomon R. Guggenheim Found. v Lubell, 77 NY2d 311, 569 NE2d 426, 567 NYS2d 623 [1991]). The court finds that the museum's lack of due diligence was unreasonable.
The estate must then meet the second prong of the test for laches by demonstrating prejudice to the possessor (Wertheimer v Cirker's Hayes Stor. Warehouse, 300 AD2d 117, 752 NYS2d 295 [1st Dept 2002]). HN10A defense of laches "is deficient if it fails to include al legations showing not only a delay, but also injury, change of position, intervention of equities, loss of evidence, or other disadvantage resulting from such delay" (Glenesk v Guidance Realty Corp., 36 AD2d 852, 853, 321 NYS2d 685 [2d Dept 1971]). In Wertheimer, the court applied the doctrine of laches because although the original owner had knowledge of the location and possessor of the property, he failed to take any action to recover the painting for almost 50 years. The court held that this lack of due diligence prejudiced the defendant art gallery by making it impossible to prove that any of the gallery's predecessors in interest held good title to the painting (Wertheimer v Cirker's Hayes Stor. Warehouse, 300 AD2d 117, 118, 752 NYS2d 295 [1st Dept 2002]); see also Greek Orthodox Patriarchate of Jerusalem v Christie's, Inc., 1999 U.S. Dist LEXIS 13257, 1999 WL 673347 [SD NY 1999] [in which the court noted in dicta that under New York law, a delay of almost 70 years in bringing the case prejudiced the family that possessed the manuscript by making it almost impossible to prove ownership]). The court in Wertheimer further noted that laches applied even in the face of an allegation that the gallery had failed to inquire about the painting's background before purchasing it (Wertheimer v Cirker's Hayes Stor. Warehouse, 300 AD2d 117, 118, 752 NYS2d 295 [2002]).
In the case at bar, the museum did not act even after it was provided with reasonably reliable information concerning the tablet's whereabouts in 1954. As a result of the museum's inexplicable failure to report the tablet as stolen, or take any other steps toward recovery, diligent good faith purchasers over the course of more than 60 years were not given notice of a blemish in the title. That, coupled with the fact that Riven Flamenbaum's death has forever foreclosed his ability to testify as to when and where he obtained the tablet, has severely prejudiced the estate's ability to defend the museum's related claim to the tablet. These are precisely the circumstances in which the doctrine of laches must be applied.
Conclusion
The court finds that the museum's claim is barred by the doctrine of laches.
marble falls
(57,157 posts)nuclear power or weapons? An invading force gets to give the patrimonies of nations to whoever it wants? What about the looting of Iraqi national treasures ( a lot of which made it the US by way of our troops returning) that was our resonsibility for knocking out all civil order in Iraq for months. We get to say who is the right possessor of something that is clearly neither ours nor the holocaust survivor's. It belongs in Iraq. They have regime change, right? They're safe enough that all US troops have left. It won't even offend Sharia law cleric's - there's no graven images on it. Like the Berlin does't have enough gee gaws and doo-dads. Like the survivor has a legal document saying this thing is his by virtue of having survived.
Repatriate it.
Confusious
(8,317 posts)Is that at the time it was uncovered, the Ottoman empire controlled the territory, and had for a thousand years, and they gave permission. Before that, it was the byzantine empire, before that the Persians.
So, how far back do you want to go?
Another point: The reason we get to decide is because we have the best mean of preserving such treasures. Would you send something back just to have it decay into dust in ten years?
happyslug
(14,779 posts)i.e. Who gets the tablet, the Son or the Daughter of the Holocaust survivor???? Sorry, this is a case involving who gets the Tablet and the son of the survivor appears to have wanted it sold and the proceeds divided among the survivor's children. The Museum stated it had been stolen and thus they still had the best claim to ownership as opposed to the Son and Daughter (The actual Holocaust Survivor died in 2005). Thus only three people claimed ownership, the Daughter who was the Executor of the Father, his son and the Museum which had the Tablet prior to 1945. That was the three choices for the court, Iraq did NOT even enter and appearance in the case.
frylock
(34,825 posts)AmericanGI
(1 post)Oh how funny, people on here are concerned about Germany stealing from Iraq? funny, our museums are full of artifacts from all over the world. The same people angered by this had no problem cheering on Bush and Obama into a war against Iraq (and now Iran) for oil and money for Israel. This guy sounds like a thief who fabricated a lie to come to America and stole along the way and probably gets a check every month for his undocumented "pain and suffering". First, the artifact was stolen from Germany, where it belongs. Second, we live in a society where no one is accountable for their actions. Letting this man keep a stolen artifact only reinforces that. It is not his families jewelry or money, it is an artifact from a museum so stop playing the violin music and whining. Yes, the things that happened during WWII were atrocious. People do not take into account that Germans ARE NOT Nazis. The Nazi party was just as the Al Queda is, a minority who influenced the majority. But Germany got their now didn't they? the country was bombed, women raped and museums pillaged by thieves, many of them being American soldiers. The same type of soldiers who would eventually repeat this behavior in Vietnam and then Iraq with no consequences. It is time to end the cycle hatred towards the Germans and teach history, not guilt. Be worried about our own government before pointing fingers at a government that no longer exists in Germany.
MjolnirTime
(1,800 posts)
Just kidding. Thanks for the real facts.
freshwest
(53,661 posts)
Xipe Totec
(43,890 posts)Welcome to DU!
Prometheus Bound
(3,489 posts)I notice that some papers put that in the headline while others didn't.
happyslug
(14,779 posts)It is a short opinion, so I quoted it at post 92 in full, if you want to read it. The only issue was one of "laches", which is a Common Law Rule that says
The Doctrine of Laches consists of the following elements:
1. Unreasonable lapse of time.
2. Neglect to assert a right or claim.
3. To the detriment of another.
If these three elements are met, then the Doctrine of Laches will act as a bar in court.
http://sheilalr.tripod.com/index-3.html
The Court ruled that Laches did apply in this case for the Museum did all it could to find the Tablet after it was stolen AND the primary reason the Museum did NOT recover it sooner as it was unknown where the Tablet was DO TO THE ACT OF THE PERSON WHO HAD POSSESSION OF THE TABLET.
The Family actually contacted the Museum to determine its value, do to the fact the Family knew, or found out, who had owned it previously. Thus it was the Act of the deceased and his family that prevented recovery by the Museum NOT any act or failure to act on part of the Museum. Thus laches did NOT apply and except for Laches, theft can NOT give title to stolen property. Thus once the doctrine of laches was found NOT to apply, the traditional English Common Law Rule that theft can NOT bring with it good title applied and thus the Tablet was the sole property of the Museum.
azurnoir
(45,850 posts)IMO there will be further court filings
Egalitarian Thug
(12,448 posts)Ken Burch
(50,254 posts)Last edited Sun Jun 3, 2012, 10:06 PM - Edit history (1)
If what this family did was theft(and NOTHING in the article indicates that Mr. Flamenbaum himself took the tablet from the museum or knew where the tablet came from at all, other than knowing that it was owned by someone or something connected to or at least tacitly allied with the Reich--Hitler didn't let anti-Nazis run museums, for God's sake--and had no reason to see it as anything but a symbol of what he and his deceased relatives had suffered), it was theft that brought the object to the museum in the first place. The museum has no claim to moral superiority on this issue at all. In fact, the only reason that Germany has any claim to the piece was that some German archeologists in the 1920's SAY they had it...remember, this was an era in which Europeans were looting cultural artifacts from every other place on the Earth and in massive numbers).
happyslug
(14,779 posts)Last edited Mon Jun 4, 2012, 04:11 PM - Edit history (2)
I quoted the actual opinion of thje court of Appeals AND the decision of the trial court. The Trial Court clearly states this started as a fight between the son and daughter of the decedent, NOT the Museum. Someone contacted the Museum to see the value of the item, and do to that request the Museum decided to intervene.
Thus it is court decision that started out as a fight between relatives as to WHO should get the Tablet (or if it should be put up for sale, and the proceeds divided among the heirs of the Decedent). Where the Tablet should go was unimportant to any of the Family members (And to the Court), the only question was one of the money value of the Tablet. It was this decision the Court of Appeals reversed, saying that the Museum did all it could to recover the property and the reason it did NOT regain the property previously was due to the actions of the Decedent NOT the Museum.
Ken Burch
(50,254 posts)It just bothered me that the Museum chose to make an issue of this.
happyslug
(14,779 posts)Now, Fraud can give good title, i.e. if someone had said to the Museum if you give me the Tablet, I give you this genuine item in exchange and it turns out the item is junk, that is Fraud and whoever the buyer sells the Tablet to would have "Good title". The problem is everyone agreed that the Tablet was STOLEN and then sold. That may be fraud of the buyer to the seller, but "Good Title" ended with the theft of the tablet.
The trial Judge had used the concept of "Laches" to say the Museum never reported the Tablet Stolen to the proper authorities and never made an effort to look for the Tablet. The Appeal judges ruled that given that the Museum had told the East Germany Police of the Theft, that was sufficient, for no one knew where the Tablet had gone thus no way to inform anyone about it (i.e. the law does NOT require a victim of theft to report the theft to every police department in the WORLD, let one of them finds it, the law requires just that it is reported stolen to the property authorities in the area it was stolen, in that case the East German Government).
Remember the Museum did NOT know where the Tablet was TILL SOMEONE CONTACT IT ABOUT ITS VALUE. Only then did the Museum know where the Tablet was. The Museum then ask for it to be returned WHICH IS WHAT THE LAW REQUIRES.
Yes, we may fell sorry for the Holocaust survivor and his heirs, but none of that is relative to the issue of WHO OWNS THE TABLET. The law is clear, the Tablet belongs to the Museum.
What you are saying is like the Court deciding which bank robber should get the proceeds of a Bank Robbery, because subsequent to their arrest, the Police illegally tortured the bank robbers. That is NOT the law, the Law says the money goes to back to the Bank, the tortured bank robbers claim is against the Police that tortured them NOT the person they robbed.
It is NOT the Museum who threw the Survivor into the Death Camps, it was the German Government. Any claim the Survivor had was against GERMANY not the Museum. That is the bases of the Court's decision, if someone robs you, you have the right to get what was stolen back from that robber, even if the property has changed hands and the person who ended up with the property suffered a terrible harm by some third party.
bluedigger
(17,087 posts)That would be the traditional way to resolve the dispute.