Ending months of agonising silence, yet failing to settle a key question that has pitted US museums against archaeologists in a widely watched lawsuit, a federal court has ruled that the US properly seized a Sicilian antiquity from a collector because of false statements on customs forms. The decision was announced on 12 July by the influential US Court of Appeals for the Second Circuit in New York.
The ruling is a disappointment to museum groups, who sought to overturn a lower court ruling that the disputed object was “stolen” property in the US, and therefore subject to US forfeiture, in conforming with Italian laws claiming antiquities as State property (The Art Newspaper, No.86, November 1998, pp.1,3). Italy claims State ownership of all archaeological items which were not privately owned before 1902. The museums had argued that if foreign patrimony laws can make objects “stolen” for US forfeiture purposes, US museum collections could be cleared of antiquities acquired years ago.
In the lawsuit, friend-of-the-court briefs were filed by the American Association of Museums, saying the object should stay with the New York collector who bought it, Michael Steinhardt, and the Archaeological Institute of America, supporting the object’s return. Observers had hoped that the decision would either endorse or reject a much criticized earlier ruling, US vs McClain (1977), in which a sister federal court of appeals held that Mexican patrimony laws made objects “stolen” for purposes of the US National Stolen Property Act.
But the US also claimed forfeiture of the object, a ritual libation cup or phiale, on the separate ground that false statements were made on customs declarations when it was imported, and in the end, despite the considerable legal energy invested on both sides, the appeals court limited its legal analysis to the customs violation, declining to rule on whether foreign patrimony laws can make imported antiquities “stolen property” in the US.
US customs law prohibits the making of false statements in the course of importing merchandise into the US, and directs the forfeiture of property imported “contrary to law.” When the gold phiale was imported in 1991, the customs declaration listed its country of origin as Switzerland, which the appeals court called indisputably false. The object was authenticated to be of Sicilian origin. The dealer, Robert Haber, who sold Mr Steinhardt the gold cup in 1991 for over $1 million, viewed it in Sicily, then took possession of it in Switzerland.
But Mr Steinhardt argued that a false statement on customs forms must be “material” to justify forfeiture, and that a false statement is “material” only if a truthful answer would have actually barred the object’s entry. Listing Italy would not have kept the object out, he contended.
The court rejected this argument. The question was instead whether the false statement would have a natural tendency to influence customs officials or could significantly affect the importation process, it said. The purpose of customs law is to ensure truthfulness of all statements made during import, it said, not just statements that determine entry.
The court went on to say that a 1991 Customs Directive annulled the argument that listing Switzerland was irrelevant. That Directive advised customs officials to determine whether imported property was subject to claims of foreign ownership, and to seize any such property. Cultural property claimed by foreign nations under patrimony laws therefore could be seized, the court said, precisely because the Customs Directive cited the much criticized McClain ruling that the US can seize objects exported in violation of a foreign patrimony law.
“Regardless of whether McClain’s reasoning is ultimately followed,” the court said, a reasonable customs official “would certainly consider” that under it, the phiale could have been seized as possibly exported contrary to Italian patrimony law.
So while the court would not rule on whether a foreign patrimony law can make an antiquity “stolen” in the US, it cited both the US Customs policy of considering foreign cultural property claims under the McClain case, and Italy’s patrimony laws, to hold that the false statement of Switzerland was significant. The Steinhardt decision thus unequivocally adds, if only by a smidgen, to the recognition of foreign patrimony laws in the United States.
“The government of Italy is very pleased to have this important item of cultural patrimony returned,” Steven Skulnik, of the New York law firm Pavia & Harcourt, which represented Italy in the lawsuit, told The Art Newspaper. “This decision recognizes the impropriety of illicit traffic in the art market and is a significant victory for the rule of law.”
The court rejected an alternative argument by Mr Steinhardt that he had an “innocent owner” defence against forfeiture.
The phiale will go back to Italy, unless Mr Steinhardt takes further legal measures to keep it here pending any further appeal.
Originally appeared in The Art Newspaper as 'The penalty of lying to customs'