On 14 October, lawyers for Italy and a New York collector argued contradictory interpretations of Italian law to a US federal appeals court in a lawsuit over the confiscation by US Customs agents of a fifth-century Sicilian phiale following a request from Italy.
The collector, investor Michael Steinhardt, is contesting Italy’s claim that, under Italian law, it owns the gold phiale, which was seized from his residence in 1995. The phiale is said to have been unearthed in Caltavuturo, Palermo during electric pylon excavations, less than a decade before Mr Steinhardt bought it through a New York art dealer in 1992.
Evan Barr, the assistant US attorney, cited two grounds for the forfeiture to the court. The phiale was “stolen property” under Italian patrimony law, he said, and was therefore illegally imported into the US; and it was imported by means of material false statements on US Customs forms, which stated the country of origin as Switzerland. The judges focused on the false customs declaration in questioning Mr Steinhardt’s attorney, Frederick Schaffer, who maintained that the designation of Switzerland was not material.
“Had Customs known the country of origin was Italy, they had no legal power to prevent its entry”, he said, because the misstatement was not “the means” by which the object was imported.
Such an argument would be “an incentive to people to lie”, Judge Mukasey said.
Mr Steinhardt is arguing that Italian law does not clearly vest title to unearthed archaeological objects in the State. Instead, he says, it only gives Italy a lien against such objects. Mr Schaffer cited provisions under Italian law by which the State is to notify and compensate owners of antiquities it claims.
But Italy’s lawyer, Steven Skulnik, pointed to section 826 of the Italian Civil Code, which states in that things of archaeological interest “discovered in the subsoil...are part of the nondisposable patrimony of the State.”
Private ownership giving rise to the lien provisions, Mr Skulnik told the court, “is only available” to archaeological items if they were discovered before 1902. Asked whether the patrimony law covers objects discovered “in the backyard”, he cited a decision of the Italian Court of Cassation involving an object found in a basement. “There is no requirement of proving that it came from a dig by professional archaeologists”, he said
Mr Steinhardt has argued that Italian law is not clear enough to give fair notice of the State’s claim to objects such as the phiale.
But Evan Barr, for the US, said that the facts showed “there was knowledge of Italian law.” The dealer “took great pains”, he said, to bring the object into the US from Switzerland. “There was a signed agreement providing for a refund in the event of a claim by any country or in the event of confiscation”, he said, showing that “the parties contemplated they might be heading for rouble with Italy.”
US museums have told the court that, if it approves the confiscations of the phiale, foreign governments will be able to take cultural objects from them with no “innocent owner” defence.
But a federal forfeiture proceeding has to be commenced within five years of an item’s illegal import in to the US, Mr Skulnik told The Art Newspaper, meaning that objects which have been in US museums longer than that could not be forfeited following the procedure used in the Steinhardt case.
George Pavia, who heads Pavia & Harcourt, the firm representing Italy, said in an interview that the Steinhardt case was “relatively unique.”
“This does not represent a desire on the part of the Italian government to pursue each and every piece of Italian art that has been exported in the course of the past thousand years”, he said.
“To do so would empty the majority of the world’s museums and private collections, and that is not the intent of the Italian government. This is a special case involving the knowing and intentional violation” of Italian and US law, he said.
Of greatest concern to the museums is the proposition that violation of a foreign nation’s patrimony law, prohibiting private ownership of object found in is soil, can make an object “stolen” for purposes of US Customs provision, which allow seizure and forfeiture of imported stolen merchandise.
But based on their questions on the matter of the customs declaration, it is possible that the judges could dispose of the lawsuit simply by ruling solely on that issue.
Originally appeared in The Art Newspaper as ‘US collector challenges Italy’s law'