In a 3-0 decision on Monday, the 2nd U.S. Circuit Court of Appeals in New York said sovereign immunity shielded the museum and Britain from having to return “Portrait of Greta Moll” to the grandchildren, Oliver Williams and Margarete Green from Britain and Iris Filmer from Germany.
The case is one of many seeking to recover art stolen or misappropriated in connection with World War Two.
Margarete Moll, known as Greta, became the painting’s owner after her husband Oskar died in 1947.
She then entrusted it with one of her husband’s former art students for safekeeping from looters in Switzerland.
But Moll’s heirs said the student stole the painting, which then changed hands several times, including through a Manhattan gallery, before the National Gallery bought it in 1979.
They sued after the Spoliation Advisory Panel, a British government body reviewing Holocaust-era claims, said it lacked jurisdiction because the Nazi era ended in 1945, two years before the alleged theft.But the U.S. appeals court said the heirs also failed to allege that the painting was “taken,” and therefore could not claim liability under the Foreign Sovereign Immunities Act.
“The alleged taking of the painting was committed by a private actor,” the court said. “The National Gallery’s refusal to compensate [plaintiffs] for that taking after the fact does not provide a basis for jurisdiction over a foreign sovereign and its instrumentality.”
David Rowland, a lawyer for Moll’s grandchildren, said they had no immediate comment. The museum and its lawyers did not immediately respond to requests for comment.
Monday’s decision upheld a September 2017 ruling by U.S. District Judge Valerie Caproni in Manhattan.
Greta Moll had sat for 10 three-hour sessions for her painting, which Matisse reworked after seeing a work in Paris by the Italian Renaissance artist Paolo Veronese.
The case is Williams et al v. National Gallery, London et al, 2nd U.S. Circuit Court of Appeals, No. 17-3253.
Reporting by Jonathan Stempel in New York; editing by Grant McCool