Price v. US, Civ. A. No. H-83-4969.

• Decision Date: 09 February 1989
• Docket Number: Civ. A. No. H-83-4969.
• Citation: 707 F. Supp. 1465
• Parties: Billy F. PRICE, Henriette Hoffman Von Schirach, and Heinrich Hoffman, Jr., Plaintiffs, v. UNITED STATES of America, Defendant.
• Court: U.S. District Court — Southern District of Texas

707 F. Supp. 1465

Billy F. PRICE, Henriette Hoffman Von Schirach, and Heinrich Hoffman, Jr., Plaintiffs, v. UNITED STATES of America, Defendant.

Civ. A. No. H-83-4969.

United States District Court, S.D. Texas, Houston Division.

February 9, 1989.

COPYRIGHT MATERIAL OMITTED

Larry A. Campagna, Chamberlain, Hrdlicka, White, Johnson & Williams, Houston, Tex., for plaintiffs.

Frank Conforti, Asst. U.S. Atty., Houston, Tex., for defendant.

OPINION ON PARTIAL SUMMARY JUDGMENT

HUGHES, District Judge.

In this suit against the United States, an art investor and the children of a German photographer and curator seek recovery of four paintings and two photographic archives seized in Germany by the United States Army in May 1945. As an alternative, the plaintiffs seek money damages for the conversion of the property.

Cross motions for summary judgment have been filed. Judgment will be entered for the plaintiffs for title and possession.

The Paintings.

The four watercolors were painted by Adolph Hitler. Hoffman acquired them from Hitler by gift in 1936. They were found in a German castle where Heinrich Hoffman, Sr., had stored them for safe keeping during the war. In May 1945, as American troops moved through Germany, the paintings were discovered and taken to the United States Army's central collection point in Munich so that they, like other art, could be returned to the owner. No claim for the paintings was ever made, but the United States surmised that they somehow belonged to Germany. The paintings were transferred to the United States in 1950 and have been stored in an army warehouse in Virginia where they are identified by the United States as works by Hitler and "property of the state of Germany."

Heinrich Hoffman, Sr., died in 1957. At the war's end, having been adjudged a war profiteer at a Nurenberg trial, he had been dispossessed of eighty percent of his property as punishment. The Hitler paintings were not among the possessions he lost; therefore, title to the paintings passed to his children Heinrich Hoffman, Jr., and Henriette Hoffman von Schirach. When Hoffman was released from jail in 1950, according to his children, he knew the United States Army had taken the watercolors, but none of the Hoffmans had knowledge of their location until 1982, when Billy F. Price showed them an army brochure which depicted the watercolors. Von Schirach identified them as the four paintings owned by her father that disappeared in 1945.

Von Schirach agreed to convey ownership of the works to Price in exchange for his securing them from the possession of the United States. The plaintiffs, Price, von Schirach, and Hoffman, Jr., began making written requests for their return in mid-1982. By letters dated January 5, 1983, and May 4, 1983, the United States Army refused to surrender possession of the paintings. After Federal Tort Act claims were denied, this suit was filed in August 1983.

The Photographs.

In addition to the four watercolors, this suit involves a demand for the return of two photographic archives. The first archive is held by the General Services Administration in Washington, D.C. It was compiled during the early 1900s when Hoffman ran a press photograph agency. In 1937, Hoffman transferred ownership to his son. Young Hoffman supplemented this photograph collection from 1937 to 1945. Unlike his father, young Hoffman has never been adjudicated a war criminal.

The Hoffmans learned that the archive was held by the United States Army in late 1945 when they were summoned to identify photographs to be used at the Nurenberg trials. Young Hoffman was compensated for cataloging the collection. While working on the collection between 1946 and 1949, Hoffman was told on many occasions that it would be returned to him when the Army's use was concluded. In an affidavit, Hoffman states that General Potter was among the United States officials who assured him the archive would be returned.

In 1951, General Potter told the plaintiff that the Army had decided to ship the archive to the United States for use in compiling a history of World War II. In the mid-1950s, Hoffman, was told by a German lawyer, whom he had hired to inquire about the archive's return, that the Army would keep it for as long as it was needed. Hoffman visited the United States in 1971 and viewed what was labeled as the Heinrich Hoffman collection in the National Archives in Washington, D.C. Again, Hoffman sought the advice of a lawyer about reclaiming it, and he was told that as long as it was held with the understanding that it belonged to him, a statute of limitations would not run. The Hoffmans' ownership in the archive was also conveyed to Price, and the plaintiffs made their first demand for the return of the Washington archive in June 1983. In a letter dated September 13, 1983, the General Services Administration refused to relinquish the archive. The plaintiffs filed Federal Tort Act administrative claims for its return; they were denied.

The second photographic archive is located at a Pennsylvania Army base. It was looted by Time magazine correspondents in 1945 from a German castle. Most of the collection originally taken by Time was returned to the Hoffmans in the settlement of an unrelated suit. Through discovery in the lawsuit against Time, the plaintiffs found that the magazine had delivered some of the photographs to the United States Army in Carlisle Barracks, Pennsylvania. In May 1984, the United States denied the plaintiffs' third tort claim for conversion of this archive.

Claims.

The government claims that treaties limiting actions arising from activities in World War II, sovereign immunity, the Tucker Act, and a statute of limitations shield it from liability for the return of all the Hoffman works. The parties do not dispute the circumstances of the seizure of the paintings and archives, the identity of the owners in 1945, or the dates that demand for their return was made.

On October 20, 1986, the parties were ordered to make a list of operative facts, yet the government claims that a protective order granted in 1984 prevents it from having to answer the plaintiffs' requests for admissions. In the five years that this suit has pended, the government has not controverted any of the plaintiffs' summary judgment evidence, except to call it self-serving. The United States has offered no letters to show that it refused to redeliver before 1982 or challenged the authenticity of the plaintiffs' documents about their 1982 demands and the refusals.

Summary Judgment.

The party seeking a summary judgment must establish that (1) no genuine dispute exists about any material fact, and (2) the law entitles it to judgment. Fed.R. Civ.P. 56(c); Thomas v. Harris County, 784 F.2d 648, 651 (5th Cir.1986). Until the movant has properly supported the motion, no response is required. Once this is done, however, to preclude the rendition of a summary judgment, the nonmovant must present evidence demonstrating specific, contested facts that are material to the issues requiring adjudication. Fed.R.Civ.P. 56(e). For this purpose mere allegations or denials will not be sufficient. Celotex Corp. v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); Fontenot v. Upjohn Co., 780 F.2d 1190 (5th Cir.1986).

Immunity.

The United States urges that this case be dismissed because under the Settlement Convention, signed by the United States and Germany at the Yalta Conference, Germany waived the claims of its nationals arising out of the war against the United States. Article 1, Chapter Nine, of the Settlement Convention provides: "German nationals ... shall not assert against countries ... claims of any description arising out of actions taken or authorized by the governments of these countries between September 1, 1939, and June 5, 1945, because of the existence of a state of war in Europe." 6 U.S.T. 4411, T.I.A.S. No. 3425 (1954). Article 3 of the Convention extends the provisions of Article 1 through the date of the treaty, October 23, 1954.

The parties do not dispute that Germany was empowered to waive the claims of its nationals, but the claimants urge that this suit arose not out of the war but from unlawful action by the United States in the United States after 1945.

Bailment.

The representations of the United States Army from 1945 until 1982 indicate that a bailment for the benefit of the United States existed between it and the Hoffmans. Title was in the Hoffmans, and possession for a limited purpose was in the United States. Although the bailment arose out of wartime activity, it did not ripen into a claim until the duty to redeliver was breached by the United States's assertion of ownership in the paintings and archives. Both the refusal to redeliver and the assertion of title occurred in the United States almost forty years after the war. The bailor's right to require restoration of the item bailed is an indelible incident to a bailment. Earhart v. Callan, 221 F.2d 160 (9th Cir.1955), cert. denied, 350 U.S. 829, 76 S.Ct. 59, 100 L.Ed. 740 (1955). Had the paintings and archives been pillaged in 1945 with no manifestation of an intent to return them, the defendant's immunity defense would be sustained. The Hoffmans, living in an occupied state, may have had no practical choice but to consent to the United States's requisition of the archives. This does not negate the existence of a bailment, the terms of which were not breached until well after 1954 when the defendant's use concluded and return was refused.

Similarly, it was not the intent of the United States to convert the paintings in 1945; the government's repeated representations that the paintings were being held for the owners created a bailment for the benefit of the Hoffmans. The labels the United States used in displaying the property belie any claim of ownership before this suit. Mutual express assent is not necessary to create a bailment; implication is enough....