Howard J. Barnet, of the 2012 Saretta Barnet Revocable Trust, Peter L. Barnet, of the 2012 Saretta Barnet Revocable Trust, Jane L. Barnet, of the 2012 Saretta Barnet Revocable Trust, Sotheby's, Inc. v. Ministry Sports of the Hellenic Republic
| Decision Date | 09 June 2020 |
| Docket Number | No. 19-2171-cv,August Term 2019,19-2171-cv |
| Citation | 961 F.3d 193 |
| Parties | Howard J. BARNET, AS TRUSTEE OF the 2012 SARETTA BARNET REVOCABLE TRUST, Peter L. Barnet, as Trustee of the 2012 Saretta Barnet Revocable Trust, Jane L. Barnet, as Trustee of the 2012 Saretta Barnet Revocable Trust, Sotheby's, Inc., Plaintiffs-Appellees, v. MINISTRY OF CULTURE AND SPORTS OF THE HELLENIC REPUBLIC, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Second Circuit |
Gary Stein, Schulte Roth & Zabel LLP, New York, New York (Randall T. Adams, Bayard P. Brown, and Minji Reem on the brief), for Plaintiffs-Appellees.
Andrew Z. Schwartz, Foley Hoag LLP, Boston, Massachusetts (Leila A. Amineddoleh on the brief), for Defendant-Appellant.
Before: Hall, Lynch, and Menashi, Circuit Judges.
In this appeal, we decide whether Greece's assertion of ownership over an ancient horse figurine was "in connection with a commercial activity" by Greece within the meaning of the Foreign Sovereign Immunities Act. We conclude that the assertion of ownership was in connection with Greece's enactment and enforcement of patrimony laws that declare the figurine to be the property of Greece and that these are sovereign rather than commercial activities. Accordingly, the FSIA does not authorize jurisdiction over this dispute, and we reverse and remand with instructions to dismiss for lack of jurisdiction.
In 2018, Sotheby's auction house announced that it planned to auction a bronze horse figurine on behalf of the 2012 Saretta Barnet Revocable Trust. Greek officials learned of the auction and sent a letter via e-mail to Sotheby's stating that the figurine belonged to Greece pursuant to its 1932 Antiquities Act and its 2002 Protection of Antiquities and Cultural Heritage in General Act (together, "patrimony laws"), which declared historic Greek artifacts to be the property of Greece. Sotheby's withdrew the figurine from its auction and subsequently joined the trustees of the Trust in filing suit against Greece in the Southern District of New York. Plaintiffs seek only declaratory relief on the disputed issue of ownership; they seek no damages or injunctive relief. As the basis for jurisdiction, Plaintiffs invoke the FSIA, which codifies certain enumerated exceptions to the rule that foreign states are immune from suit.
In denying Greece's motion to dismiss, the district court agreed with Plaintiffs that Greece lacks immunity here because its action of sending the letter claiming ownership falls within the FSIA's "commercial activity" exception. That exception authorizes suit against a foreign state that undertakes "an act outside the territory of the United States in connection with a commercial activity of the foreign state elsewhere and that act causes a direct effect in the United States." 28 U.S.C. § 1605(a)(2).1 The district court reasoned that the "act" outside the United States was Greece's sending of the letter, and it was "in connection with a commercial activity" outside the United States because non-state actors may, and do, send demand letters claiming ownership of artifacts up for auction. In other words, the conduct was commercial because it was not the sort of activity in which only sovereigns engage.
We agree that the core challenged act in this case was Greece's sending of the letter asserting ownership over the figurine. We disagree, however, that the act was undertaken in connection with a commercial activity outside the United States. The connected activity was Greece's enactment and enforcement of patrimony laws that declare the figurine to be the property of Greece. The enactment and enforcement of such patrimony laws are archetypal sovereign activities and therefore do not provide the requisite connection to commercial activity that would authorize suit under the FSIA.
Because the commercial-activity exception was the only purported basis for jurisdiction, we reverse and remand with instructions to dismiss this action for lack of jurisdiction.
In 1932, Greece enacted the Antiquities Act, which states that "[a]ll antiquities movable or immovable found in Greece and in any State land, in rivers, lakes and at the bottom of the sea, and in municipal, monasterial and private estates from ancient times onwards, are the property of the State." Diatagma (1932:5351)[On Antiquities],[ LEGAL GAZETTE ] 1932, Art. 1 (Greece) [hereinafter Antiquities Act]. The Act further provides that "[w]hoever becomes in any way the owner of an antiquity, must within fifteen days of the time it came in his/her possession, declare it to the nearest archaeological or police authority, or to the Archaeology Department of the Ministry of Education and Religious Affairs, while at the same time letting them know how he/she obtained this antiquity and, if possible, the place where this was found." Id. , Art. 5.
An owner who fails to make this required declaration within 15 days but who does so within two months will face a fine. Id. , Art. 6. If the declaration is made after two months, the fine will increase. Id. And "[i]f the holder of the antiquity is found after said two month period and prior to the declaration, in addition to the [increased] fine the confiscation of what was discovered will be done in favor of the State Museums." Id. "Whoever for the purpose of illegally disposing of an antiquity fails to declare possession thereof for more than two months, they shall be punished by imprisonment for 1 to 6 months and a fine of 1000-4000 drachmas." Id.
In 2002, Greece enacted the On the Protection of Antiquities and Cultural Heritage in General Act, which states that "the Greek State shall care for the protection of cultural objects originating from Greek territory whenever they may have been removed from it" and "wherever they are located." Nomos (2002:3028)[On the Protection of Antiquities and Cultural Heritage in General],[ LEGAL GAZETTE ] 2002, Art. 1(3) (Greece) [hereinafter Cultural Heritage Act]. The 2002 Act further provides that "[m]ovable ancient monuments dating up to 1453 belong to the State in terms of ownership and possession, are imprescriptible and extra commercium ." Id. , Art. 21(1).3 The holder of such an object "may transfer his possession, after notifying the [Ministry of Culture] of his intention and the personal data of the candidate holder, who shall submit an application for a permit of possession," but "[a]ny transfer effected without this permit shall be null and void and the movable monuments shall be taken without formalities by the State." Id. , Art. 28(1).
The 2002 Act also authorizes criminal penalties: Id. , Art. 59.
The bronze horse figurine at the center of this case is "of Corinthian type, 14 cm tall, [and] from the Geometric Period." Compl. ¶ 1. It was sold at a public auction in Switzerland in 1967. Thereafter, the figurine was acquired by antiquities dealer Robin Symes, who then sold it to Howard and Saretta Barnet in 1973.4 Howard Barnet passed away in 1992, and in 2012 the figurine was transferred to the 2012 Saretta Barnet Revocable Trust. Saretta Barnet passed away in 2017, and the Trust consigned the figurine for auction at Sotheby's.
Sotheby's planned to auction the figurine on May 14, 2018, in New York City. On April 25, 2018, Sotheby's published an auction catalogue online that included the figurine as "Lot 4, Greek Figure of a Horse of Corinthian type, of stylized attenuated form standing on an openwork rectangular base, with crested mane with fine notches at the edge, cylindrical muzzle nearly encircled by grooved markings, long striated ears, and fragmentary tail, Bronze, Height 5 ½ in (14 cm), Geometric Period, circa 8th Century BC, Greek," with an estimated auction price of $150,000 to $250,000. Id. ¶ 33.
On May 11, 2018, the Friday prior to the Monday auction date, the Greek Ministry of Culture emailed a letter to Sotheby's marked "URGENT." The letter made the following points:
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