Lead Opinion
There is a temple in ruin stands,
Fashion’d by long forgotten hands;
Two or three columns, and many a stone,
Marble and granite, with grass o’ergrown!
Out upon Time! it will leave no more
Of the things to come than the things before!
Out upon Time! who for ever will leave
But enough of the past and the future to grieve
O’er that which hath been, and o’er that which must be:
What we have seen, our sons shall see;
Remnants of things that have pass’d away,
Fragments of stone, rear’d by creatures of clay!
from The Siege of Corinth,
George Gordon (Lord Byron)
Byron, writing here of the Turkish invasion of Corinth in 1715, could as well have been describing the many churches and monuments that today lie in ruins on Cyprus, a small, war-torn island in the eastern corner of the Mediterranean Sea. In this appeal, we consider the fate of several tangible victims of Cyprus' turbulent history: specifically, four Byzantine mosaics created over 1400 years ago. The district court awarded possession of these extremely valuable mosaics to plaintiff-appellee, the Autocephalous Greek-Orthodox Church of Cyprus (“Church of Cyprus” or “Church”). Autocephalous Greek-Orthodox Church of Cyprus v. Goldberg & Feldman Fine Arts, Inc.,
I. Background
In the early sixth century, A.D., a large mosaic was affixed to the apse of the Church of the Panagia Kanakaria (“Kanakaria Church”) in the village of Lythrankomi, Cyprus. The mosaic, made of small bits of colored glass, depicted Jesus Christ as a young boy in the lap of his mother, the Virgin Mary, who was seated on a throne. Jesus and Mary were attended by two archangels and surrounded by a frieze depicting the twelve apostles. The mosaic was displayed in the Kanakaria Church for centuries, where it became, under the practices of Eastern Orthodox Christianity, sanctified as a holy relic. It survived both the vicissitudes of history, see Autocephalous,
Testimony before Judge Noland established that the Kanakaria mosaic was one of only a handful of such holy Byzantine relics to survive into the twentieth century. Sadly, however, war came to Cyprus in the 1970s, from which the mosaic could not be spared.
The Cypriot people have long been a divided people, approximately three-fourths being of Greek descent and Greek-Orthodox faith, the other quarter of Turkish descent and Muslem faith.
The tensions erupted again in 1974, this time with more violent results. In July, 1974, the civil government of the Republic of Cyprus was replaced by a government controlled by the Greek Cypriot military. In apparent response, on July 20, 1974, Turkey invaded Cyprus from the north. By late August, the Turkish military forces had advanced to occupy approximately the northern third of the island. The point at which the invading forces stopped is called the “Green Line.” To this day, the heavily-guarded Green Line bisects Nicosia, the capital of the Republic, and splits the island from east to west.
The Turkish forces quickly established their own “government” north of the Green Line. In 1975, they formed what they called the “Turkish Federated State of Cyprus” (“TFSC”). In 1983, that administration was dissolved, and the “Turkish Republic of Northern Cyprus” (“TRNC”) was formed. These “governments” were recognized immediately by Turkey, but all other nations in the world — including the United States — have never recognized them, and continue to recognize the Republic of Cyprus (“Republic”), plaintiff-appellee in this action, as the only legitimate government for all Cypriot people.
The Turkish invasion led to the forced southern exodus of over one-hundred thousand Greek Cypriots who lived in northern Cyprus. Turkish Cypriots living in southern Cyprus (and tens of thousands of settlers from mainland Turkey) likewise flooded into northern Cyprus, resulting in a massive exchange of populations.
Lythrankomi is in the northern portion of Cyprus that came under Turkish rule. Although the village and the Kanakaria Church were untouched by the invading forces in 1974, the villagers of Greek ancestry were soon thereafter “enclaved” by the Turkish military. Despite the hostile environment, the pastor and priests of the Kanakaria Church continued for two years to conduct religious services for the Greek Cypriots who remained in Lythrankomi. Hardy as they must have been, these clerics, and virtually all remaining Greek Cypriots, were forced to flee to southern Cyprus in the summer of 1976. Church of Cyprus officiаls testified that they intend to re-establish the congregation at the Kanakaria Church as soon as Greek Cypriots are permitted to return safely to Lythrankomi. (Thirty-five thousand Turkish troops remain in northern Cyprus.)
When the priests evacuated the Kanakaria Church in 1976, the mosaic was still intact. In the late 1970s, however, Church
Upon learning of the looting of the Kanakaria Church and the loss of its mosaics (made plural by the vandals’ axes), the Republic of Cyprus took immediate steps to recover them. As discussed in greater detail in Judge Noland’s opinion, see
The Republic’s efforts have paid off. In recent years, the Republic has recovered and returned to the Church of Cyprus several stolen relics and antiquities. The Republic has even located frescoes and other works taken from the Kanakaria Church, including the four mosaics at issue here. These four mosaics, each measuring about two feet square, depict the figure of Jesus, the busts of one of the attending archangels, the apostle Matthew and the apostle James.
To understand how these pieces of the Kanakaria mosaic resurfaced, we must trace the actions of appellant Peg Goldberg and the other principals through whose hands they passed in 1988.
Peg Goldberg is an art dealer and gallery operator. Goldberg and Feldman Fine Arts, Inc., is the Indiana corporation that owns her gallery in Carmel, Indiana. In the summer of 1988, Peg Goldberg went to Europe to shop for works for her gallery. Although her main interest is 20th century paintings, etchings and sculptures, Goldberg was enticed while in The Netherlands by Robert Fitzgerald, another Indiana art dealer and “casual friend” of hers, to consider the purchase of “four early Christian mosaics.” In that connection, Fitzgerald arranged a meeting in Amsterdam for July 1st. At that meeting, Fitzgerald introduced Goldberg to Michel van Rijn, a Dutch art dealer, and Ronald Faulk, a California attorney. Van Rijn and Faulk were strangers to Goldberg. All she knew about them was what she learned in their few meetings, which included the fact that van Rijn, a published expert on Christian icons (she was given a copy of the book), had been convicted by a French court for art forgery; that he claimed to be a descendant of both Rembrandt and Rubens; and thаt Faulk was in Europe to represent Fitzgerald and van Rijn.
At that first meeting in Amsterdam on July 1, 1988, van Rijn showed Goldberg photographs of the four mosaics at issue in
Faulk dutifully took this message to Dikman in Munich, and returned to Amsterdam the following day. Faulk returned from that meeting with a contract he signed as agent for van Rijn to purchase the mosaics from Dikman for $350,000. When Goldberg met with Faulk on July 2, she was not told of this contract, however. Faulk merely informed her that Dikman still had the mosaics (though he was “actively ' negotiаting with another buyer”), and that, in Faulk’s opinion the export documents he had been shown by Dikman were in order. Faulk apparently showed Goldberg copies of a few of these documents, none of which, of course, were genuine, and at least one of which was obviously unrelated to these mosaics. See Autocephalous, 717 F.Supp. at 1382.
The next day (all of this happening rather fast), the principals gathered again in Amsterdam. Goldberg, van Rijn, Fitzgerald and Faulk agreed to “acquire the mosaics for their purchase price of $1,080,000 (U.S.).” The parties agreed to split the profits from any resale of the mosaics as follows: Goldberg 50%; Fitzgerald 22.5%; van Rijn 22.5%; and Faulk 5%. A document to this effect was executed on July 4, 1988, which document included a provision reading, “This agreement shall be governed by and any action commenced will be pursuant to the laws of the state of Indiana.”
In those hectic early days of July, Goldberg contacted Otto N. Frenzel III, a friend and high-ranking officer at the Merchants National Bank of Indianapolis (“Merchants”), and requested a loan from Merchants of $1.2 million for the purchase of the mosaics. She told Frenzel that she needed $1,080,000 to pay van Rijn and the others, and she required the additional $120,000 to pay for expenses, insurance, restoration and the like. Merchants assured her that financing could be arranged, if she could provide appraisals and other documents substantiating the transaction. With Fitzgerald’s and van Rijn’s help, Goldberg obtained the appraisals (all three of which valued the mosaics at between $3 and $6 million), and sent them to Merchants. That done, she and Fitzgerald hurried to Geneva, Switzerland, for the transfer of the mosaics, which was to take place on July 5. After arriving in Switzerland, Goldberg learned that her requested loan had been approved by Merchants and the money would be forthcoming, though a few days behind schedule. Her financing secured, Goldberg proceeded to the July 5 meeting as scheduled. She could not yet turn over the money, but she wanted to get a look at what she was buying.
The July 5 meeting was held in the “free port” area of the Geneva airport, an area reserved for items that have not passed through Swiss customs. Faulk and Dikman arrived from Munich with the mosaics, which were stored in crates. Dikman introduced himself to Goldberg and then left; this brief exchange was the only time the two would meet. Goldberg then inspected the four mosaics. She testified that she “was in awe,” and that, despite some concern about the mosaics’ deteriorating condition, she wanted them “more than ever.”
However Goldberg occupied her time from July 5 to July 7, on the latter date the money arrived. Goldberg took the $1.2 million, reduced to $100 bills and stuffed into two satchels, and met with Faulk and Fitzgerald at the Geneva airport. As arranged, Goldberg kept $120,000 in cash and gave the remaining $1,080,000 to Faulk and Fitzgerald in return for the mosaics. Faulk and Fitzgerald in turn split the money with van Rijn, Dikman and their other cohorts as follows: $350,000 to Dikman (as per Faulk and van Rijn’s prior agreement with him); $282,500 to van Rijn; $297,500 to Fitzgerald; $80,000 to Faulk; and $70,-000 to another attorney in London. Along with the mosaics, Goldberg received a “General bill of sale” issued by Dikman to Goldberg and Feldman Fine Arts, Inc. The following day, July 8, 1988, Goldberg returned to the United States with her prize.
Back home in Indiana, Goldberg took what she had left of her $120,000 cut and deposited it into several of her business and personal bank accounts. After paying for the insurance and shipment of the mosaics, as well as a few unrelated art purchases, that sum amounted to approximately $70,000. Her friends and business associates in Indiana soon took quite an interest in her purchase; literally. For large sums of money, Frenzel, Goldberg’s well-placed friend at Merchants, and another Indiana resident named Dr. Stewart Bick acquired from van Rijn and Fitzgerald substantial interests in the profits from any resale of the mosaics.
Peg Goldberg’s efforts soon turned to just that: the resale of these valuable mosaics. She worked up sales brochures about them, and contacted several other dealers to help her find a buyer. Two of these dealers’ searches led them both to Dr. Marion True оf the Getty Museum in California. When told of these mosaics and their likely origin, the aptly-named Dr. True explained to the dealers that she had a working relationship with the Republic of Cyprus and that she was duty-bound to contact Cypriot officials about them. Dr. True called Dr. Vassos Karageorghis, the Director of the Republic’s Department of Antiquities and one of the primary Cypriot officials involved in the worldwide search for the mosaics. Dr. Karageorghis verified that the Republic was in fact hunting for the mosaics that had been described to Dr. True, and he set in motion the investigative and legal machinery that ultimately resulted in the Republic learning that they were in Goldberg’s possession in Indianapolis.
After their request for the return of the mosaics was refused by Goldberg, the Re
II. Analysis
A. Jurisdiction
Subject matter jurisdiction in this action was based on diversity of citizenship under 28 U.S.C. § 1332(a)(2), which vests jurisdiction in the federal district courts for actions of sufficient value between “citizens of a State, and foreign states or сitizens or subjects thereof.”
Plaintiff the Republic of Cyprus is a sovereign nation located on the island of Cyprus in the Mediterranean Sea. Plaintiff Autocephalous Greek-Orthodox Church of Cyprus is a religious organization with its principal offices in Nicosia, Cyprus. Defendant Goldberg and Feldman Fine Arts, Inc. is a corporation organized and existing under the laws of the state of Indiana, with its principal place of business in Carmel, Indiana. Defendant Peg Goldberg is a citizen of the state of Indiana.
Autocephalous,
Goldberg did not question these facts before the district court, nor in her original jurisdictional statement and briefs filed in this court. Cyprus, for its part, asserted in its jurisdictional statement that “the Church of Cyprus is a citizen and subject of the Republic of Cyprus, and is a religious corporation under Cypriot law, maintains its principle [sic] place of business in Cyprus, and is empowered to own, regulate and administer property.” Appellees’ Brief at 2 (citing record references). Goldberg has since filed an “Amendment to Jurisdictional Statement and Suggestion of Jurisdictional Issue,” stating that she “has now concluded that the record does not appear to support diversity jurisdiction because the record does not address the legal status and the citizenship of [the Church of Cyprus].”
Goldberg’s argument substantially misstates the issue. The primary question here is not whether the Church of Cyprus is incorporated under the laws of Cyprus. Proving that it is incorporated under Cyp
The generally accepted test for determining whether a person is a foreign citizen for purposes of 28 U.S.C. § 1332(a)(2) is whether the country in which citizenship is claimed would so recognize him. This is in accord with the principle of international law that “it is the inherent right of every independent nation to determine for itself, and according to its own constitution and laws, what classes of persons shall be entitled to citizenship.”
(quoting United States v. Wong Kim Ark,
Cyprus presented the following evidence to the district court: 1) the Constitution of the Republic of Cyprus recognizes the existence of the Autocephalous Greek-Orthodox Church of Cyprus and grants to it the “exclusive right of regulating and administering its own internal affairs and property in accordance with the Holy Canons and its Charter;” 2) under the “Immovable Property (Tenure, Registration and Valuation) Law” of the Republic of Cyprus, a “religious corporation” — defined as a “religious establishment or religious institution belonging to any denomination and any throne, church, chapel, monastery, mosque, tekye, shrine or synagogue” — may own and register property; and 3) the Church of Cyprus registered the Kanakaria Church in the Land Registry Office of the Republic of Cyprus pursuant to this statute. (As to this last point, see Autocephalous,
As a federal court sitting in diversity, the district court was obligated to (and did) apply the law of the state in which it sat — Indiana. See Erie R.R. Co. v. Tompkins,
The district court properly considered Cyprus’ suit to recover the mosaics a replevin action, long recognized in Indiana law as the proper legal action for the recovery of wrongfully detained personal property. See 25 Indiana Law Encyclopedia (“I.L.E.”) Replevin §§ 1, 2 & 11 (West 1960). The district court could find no Indiana case dealing specifically with choice of law in replevin actions, nor can we. Thus, we will look (as did Judge No-land) to the choice of law principles Indiana generally applies in tort cases.
In Hubbard,
*287 1) the place where the conduct causing the injury occurred;
2) the residence or place of business of the parties; and
3) the place where the relationship is centered.
Id. at 1073-74 (citing Restatement (Second) of Conflicts of Laws § 145(2) (1971)). See also Tompkins v. Isbell,
In this case, Judge Noland first determined that Switzerland — “the place of the wrong” because it was at the Geneva airport that Goldberg took possession and control of the mosaics — bears little connection to Cyprus’ cause of action. Autocephalous,
Moving to step two of the Hubbard approach, the contacts between the action and the two contending jurisdictions (Indiana and Switzerland) must be reviewed, with special attention given to the Second Restatement factors. Applying this approach, Judge Noland noted the following facts that weigh in favor of applying Indiana law: the defendants, those who financed and effected the transfer of the mosaics, and those who now hold the principal monetary interests in the mosaics are all Indiana citizens; the money used to purchase the mosaics came from an Indiana bank; the agreement among Goldberg, Fitzgerald, van Rijn and Faulk stipulates that Indiana law will apply, indicating Goldberg’s reliance on the law of her home state; and the mosaics are presently being held in Indiana, where they have been stored since they entered the U.S. in July, 1988. Based on our review of these and other facts as found by Judge Noland, we agree with his conclusion that Indiana has the more significant contacts with and interest in this action. Thus, Indiana law and rules govern every aspect of this action, from the statute of limitations issues through the application of the substantive law of replevin.
C. Statute of Limitations
With great zeal, Goldberg has from the beginning of this action challenged the timeliness of Cyprus’ complaint. Under Indiana’s statute of limitations for replevin actions, Cyprus had six years from the time its cause of action accrued in which to sue for the recovery of the mosaics. Ind.Code § 34-1-2-1 (1982). Though the exact date of the looting of the Kanakaria Church is unknown, it is agreed that Cyprus first learned of the theft of their mosaics in November, 1979. It is also agreed that Cyprus first learned that the mosaics were
The determination of when Cyprus’ cause of action accrued involves the interpretation of Indiana authorities and their application to the facts of this case. As we state above, supra at note 9, we give substantial deference to the district court’s resolution of such issues, as we assume that the district court has greater expertise in interpreting and applying the law of the state in which it sits. Our review of Judge Noland’s statute of limitations analysis convinces us that he has here proved true that assumption.
As Judge Noland noted, it is well-established in Indiana law that it is the courts’ responsibility to determine, based on the facts of each case, when the cause of action accrues. See, e.g., Burks v. Rush-more,
Apart from but related to the discovery rule, Indiana recognizes, by both statute and case law, the doctrine of fraudulent concealment. Under this doctrine, a defendant who has by deceit or fraud prevented a potential plaintiff from learning of a cause of action cannot take advantage of his wrongdoing by raising the statute of limitations as a bar to plaintiff’s action. See Ind. Code § 34-1-2-9 (1982); Burks,
Central to both the discovery rule and the doctrine of fraudulent concealment is the determination of the plaintiff’s diligence in investigating the potential cause of action. See Burks,
Applying these Indiana rules and principles to this case, and unguided by any directly analogous Indiana precedent, Judge Noland concluded that an Indiana court would find that Cyprus’ action was timely filed. Autocephalous,
Goldberg attacks Judge Noland’s discovery rule analysis on two grounds. First, she charges that in applying the discovery rule in this ease Judge Noland “announced a new rule of Indiana law in conflict with established Indiana limitations principles.” Not so. Judge Noland applied legal principles set out in Indiana cases, and generally accepted elsewhere, to a new situation not yet addressed by the Indiana courts, exactly what a district court sitting in diversity is obligated to do when presented with a novel issue under state law. See 19 C. Wright, A. Miller & E. Cooper, Federal Practice and Procedure: Jurisdiction § 4507 (1984). Further, his conclusion that in this case the operative “discovery” had to include the identity of the holder of the mosaics is eminently sound. In the context of a replevin action for particular, unique and concealed works of art, a plaintiff cannot be said to have “discovered” his cause of action until he learns enough facts to form its basis, which must include the fact that the works are being held by another and who, or at least where, that “other” is. See O’Keeffe,
Second, Goldberg attacks Judge Noland’s due diligence finding. Specifically, she argues that Cyprus failed to contact several organizations it should have, particularly IFAR and Interpol. She also repeats the argument she made to Judge Noland that events occurring before the end of 1983
The record evidence (summarized above) makes it clear that, although the Republic of Cyprus may not have contacted all the organizations Goldberg in hindsight would require, it took substantial and meaningful steps, from the time it first learned of the disappearance of the mosaics, to locate and recover them. The efforts by the Republic’s officials, targeted at the likely points of sale of the mosaics, were sweeping and consistent with trade practices. Indeed, one expert, a curator from The Walters Art Gallery in Baltimore, Maryland, testified at trial that Cyprus “stands apart” in its efforts to recover stolen cultural properties. Autocephalous,
Judge Noland backstopped his discovery rule analysis by also applying the doctrine of fraudulent concealment to the facts of this case. From that application, Judge Noland concluded that the statute of limitations on Cyprus’ action was tolled until at least the end of 1983, and thus Cyprus’ March, 1989 complaint was timely. Autocephalous,
D. The Merits of the Replevin Claim
Under Indiana law, replevin is an action at law “whereby the owner or person claiming the possession of personal goods may recover such personal goods where they have been wrongfully taken or unlawfully detained.” 25 I.L.E. Replevin § 1. “The gist of the action is the defendant’s unlawful detention of the plaintiff’s property. The issue litigated is the present right to the possession of the property in controversy, and the purpose of the action is to determine who shall have possession of the property sought to be replevied.” Id. at § 2 (citations omitted). See also State Exchange Bank of Culver v. Teague,
We note that Judge Noland again backstopped his conclusion, this time conducting an alternative analysis under Swiss substantive law. See Autocephalous,
E. The Effect of the TFSC Edicts
Finally, Goldberg argues that several decrees of the TFSC (the entity established in northern Cyprus by the Turkish military immediately after the 1974 invasion) divested the Church of title to the mosaics.
It is helpful to note at the outset what is not being claimed here. First, Goldberg does not (and cannot) suggest that this court should pass on the validity of the Turkish administration in northern Cyprus. We repeat here precepts that are well-established in the law of this country:
[T]he conduct of foreign relations was committed by the Constitution to the political departments of the government, and the propriety of what may be done in the exercise of this political power [is] not subject to judicial inquiry or decision, ... [and] who is the sovereign of a territory is not a judicial question, but one the determination of which by the political departments conclusively binds the courts[.]
United States v. Belmont,
Second, this is not a case in which one party is claiming title under the laws of a state that has been entirely displaced, and the other is claiming title under the laws of the new, displacing regime. All Goldberg can hope to gain from the invocation of these TFSC edicts is a finding that the Church’s claim of title is defective; she has no plausible claim of valid title in herself based on these edicts. This fact sets this case apart from the cases cited by Goldberg, including Salimoff,
What Goldberg is claiming is that the TFSC’s confiscatory decrees, adopted only one year after the Turkish invasion, should be given effect by this court because the TFSC and its successor TRNC should now be viewed as the “de facto ” government north of the Green Line. This we are unwilling to do. We draw on two lines of precedent as support for our decision. First, we note that, contrary to the New York court’s decision in Salimoff,
Second, we are guided in part by the post-Civil War cases in which courts refused to give effect to property-affecting acts of the Confederate state legislatures. In one such case, Williams v. Bruffy,
III. Conclusion
As Byron’s poem laments, war can reduce our grandest and most sacred temples to mere “fragments of stone.” Only the lowest of scoundrels attempt to reap personal gain from this collective loss. Those who plundered the churches and monuments of war-torn Cyprus, hoarded their relics away, and are now smuggling and selling them for large sums, are just such blackguards. The Republic of Cyprus, with diligent effort and the help of friends like Dr. True, has been able to locate several of these stolen antiquities; items of vast cultural, religious (and, as this case demonstrates, monetary) value. Among such finds are the pieces of the Kanakaria mosaic at issue in this case. Unfortunately, when these mosaics surfaced they were in the hands not of the most guilty parties, but of Peg Goldberg and her gallery. Correctly applying Indiana law, the district
Lest this result seem too harsh, we should note that those who wish to purchase art work on the international market, undoubtedly a ticklish business, are not without means by which to protect themselves. Especially when circumstances are as suspicious as those that faced Peg Goldberg, prospective purchasers would do best to do more than make a few last-minute phone calls. As testified to at trial, in a transaction like this, “All the red flags are up, all the red lights are on, all the sirens are blaring.” Autocephalous,
Notes
. Reprinted in The Complete Poetical Works of Byron 384-96 (Cambridge ed. 1933).
. For more on the history, significance and restoration of the Kanakaria mosaic, see A. Megaw & E. Hawkins, The Church of the Panagia Kanakaria at Lythrankomi in Cyprus: Its Mosaics and Frescoes (1977).
. For a full treatment of the pre-independence history of Cyprus, see Hill, A History of Cyprus (4 vols.) (1949).
. This anxious period of Cypriot history is examined in T. Ehrlich, Cyprus, the “Warlike Isle": Origins and Elements of the Current Crisis, 18 Stan.L.Rev. 1021 (1966).
. A fascinating, first-hand account of current conditions in Cyprus appears in Weaver, Report from Cyprus, The New Yorker, Aug. 6, 1990, pp. 65-81.
. In 1988, Congress amended 28 U.S.C. § 1332, changing, among other things, the language of § 1332(a)(2). Because Cyprus filed this action before May 18, 1989 (the effective date of the 1988 amendments), the pre-amended version of 28 U.S.C. § 1332(a) applies. (The changes to § 1332(a)(2) were, in any regard, only cosmetic.)
. We note that the belated nature of Goldberg’s "discovery” of this jurisdictional issue does not foreclose our review, as the lack of subject matter jurisdiction may be raised at any stage in the case by any party, including this court on its own motion. See Fed.R.Civ.P. 12(h)(3); Insurance Corporation of Ireland, Ltd. v. Compagnie Des Bauxites De Guinee,
. As Cyprus has noted, that the Republic and the Church brought this suit as co-plaintiffs is also witness to the Republic’s acceptance of the Church’s right to sue (and be sued) in its own name.
. We must employ a mixed standard of review as to this determination by Judge Noland. His conclusions as to the relevant Indiana choice of law principles, as legal conclusions, would ordinarily be reviewed de novo. See, e.g., Forum Corp. of America v. Forum, Ltd.,
. We chose tort principles because, as it is invoked by Cyprus, replevin, a free-standing cause of action in Indiana, is identical in all relevant respects to a tort claim for conversion. Compare 25 I.L.E. Replevin § 45 (plaintiff's burden in replevin claim) with Noble v. Moistner,
. Judge Noland also discusses the doctrine, recognized by Indiana courts, of equitable estoppel. Autocephalous,
. Note that any events occurring after 1983, including the acquisition in 1984 by the Menil Foundation in Texas of other Kanakaria mosaic fragments and frescoes from Dikman (of which Goldberg makes much), even if they triggered the accrual of Cyprus’ six-year statute of limitations, would not make Cyprus’ March, 1989 complaint untimely.
. The only allegation of error as to this analysis raised by Goldberg regards the first element. Goldberg claims that certain decrees of the Turkish administration in northern Cyprus stripped the Church of its claim of title to the Kanakaria Church and any movable property contained therein or taken therefrom. This allegation is discussed in a separate section below.
. Judge Noland ignored these decrees, presented to him at the latter stages of the trial and in a lengthy post-trial submission, as irrelevant.
.This Restatement section provides:
[C]ourts in the United States ordinarily give effect to acts of a regime representing an entity not recognized as a state, or of a regime not recognized as the government of a state, if those acts apply to territory under the control of that regime and relate to domestic matters only.
. We note that Cyprus has raised arguments that cast substantial doubt on the aсtual meaning and effect of these and other TFSC decrees, even should we decide to apply them. For the purposes of disposing of Goldberg's argument, however, we will assume that the TFSC decrees actually mean what Goldberg represents them to mean.
Concurrence Opinion
concurring:
I.
Although I concur in all respects in the excellent majority opinion, there are two points that I believe merit elucidation. The first of these involves the difficult problem of the time of accrual of the cause of action in replevin. The majority opinion affirms the holding of the district court, based on its interpretation of Indiana law, that the plaintiff’s cause of action does not accrue until it has, or reasonably should have, discovered the location of the stolen property — in this case the Cypriot mosaics. Although we accept the district court’s construction of Indiana law, it is unnecessary to rely solely upon this application of the discovery rule. For, as a recent study of the law of missing property demonstrates, whenever the possessor of lost or stolen personal property commits “fraud in the concealment,” the statute of limitations does not run against the original owner until that owner has actual knowledge of the location of the property and of the identity of the possessor.
This concept is analogous to the requirement that one who asserts a statute of limitations defense against an action for thе recovery of real property must have possessed the property in an “open and notorious” manner. Because it is difficult to assess openness of possession in the realm of personal property, courts have required good faith on the part of the possessor to satisfy, or substitute for, the openness requirement. Most courts considering this problem have thus concluded that the statute of limitations should not run against an original owner who lacks the facts necessary to institute suit as long as the property is held by the original thief or by a subsequent holder acting in bad faith.
If a good faith requirement were applied to the facts of the case before us, the
II.
A second and unrelated, but important, aspect of this case involves the treatment of the cultural heritage of foreign nations under international and United States law. The United States has both acceded to international agreements and enacted its own statutes regarding the importation of cultural property. These regulatory efforts have encompassed transfers of property during both wartime and peacetime and apply whether the property was originally stolen or “merely” illegally exported from the country of origin. The two most significant international agreements that attempt to protect cultural property are the 1954 Convention on the Protection of Cultural Property in the Event of Armed Conflict (the “1954 Hague Convention”), 249 U.N.T.S. 215 (1956), and the UNESCO Convention on the Means of Prohibiting and Preventing the Illicit Transport, Export and Transfer of Ownership of Cultural Property (the “UNESCO Convention”), 823 U.N.T.S. 231 (1972). Under both these multinational treaties, as well as under the United States’ Convention on Cultural Property Implementation Act, 19 U.S.C. § 2601 et seq. (1983), the Cypriot mosaics would be considered cultural property warranting international protection. For ex
(d) elements of artistic or historical monuments or archaeological sites which have been dismembered;
(e) antiquities more than one hundred years old ...;
(g) property of artistic interest, such as:
(i) pictures, paintings and drawings produced entirely by hand on any support and in any material____”
The 1954 Hague Convention may be applicable to the case before us given the incursion of Turkish armed forces into Cyprus in 1974 and our ongoing refusal to recognize the government established in the northern part of Cyprus. The 1954 Hague Convention, which is but the most recent multilateral agreement in a 200-year history of international attempts to protect cultural property during wartime,
The second international agreement, the UNESCO Convention, focuses on private conduct, primarily during peacetime, and thus is also applicable to the theft and removal of the mosaics from Cyprus.
(a) To take the necessary measures, consistent with national legislation, to prevent museums and similar institutions within their territories from acquiring cultural property originating in another State Party which has been illegally ex-ported____;
(b)(i) to prohibit the import of cultural property stolen from a museum or a religious or secular public monument or similar institution in another State Party ..., provided that such property is documented as appertaining to the inventory of that institution;
(ii) at the request of the State Party of origin, to take appropriate steps to recover and return any such cultural property ..., provided, however, that the requesting State shall pay just compensation to an innocent purchaser or to a person who has valid title to that property____
It is clear that the mosaics in the case before us were stolen (under any reasonable definition of that word) from a religious institution and that the mosaics were extensively documented by the Dumbarton Oaks publication as belonging to the Kanakaria Church. While the UNESCO Convention seems to contemplate primarily measures to be implemented by the executive branch of a government through its import and export rules and policies, the judicial branch should certainly attempt to reflect in its decisionmaking the spirit as well as the letter of an international agreement to which the United States is a party.
The UNESCO Convention, although ratified by Congress in 1972, was not formally implemented in the United States until the
As indicated, the Cultural Property Implementation Act addresses primarily the question of import controls and, in section 2607, prohibits the importation into the United States of any “cultural property documented as appertaining to the inventory of a museum or religious or secular public monument or similar institution in any State Party which is stolen from such institution----” This section is not directly applicable here, first, because the mosaics were stolen after the effective date of the statute and, second, because the statute is directed at import controls rather than replevin suits. Nonetheless, the policy that the Act embodies is clear: at the very least, we should not sanction illegal traffic in stolen cultural property that is clearly documented as belonging to a public or religious institution. This is particularly true where this sort of property is “important to the cultural hеritage of a people because of its distinctive characteristics, comparative rarity, or its contribution to the knowledge of the origins, development, or history of that people.” 19 U.S.C. § 2601(2)(C)(ii)(II).
Focusing on a relatively short segment of what might otherwise be considered its “history,” the United States chooses sometimes to ignore the ancient cultural heritage of the land which it now occupies. But a short cultural memory is not an adequate justification for participating in the plunder of the cherished antiquities that play important roles in the histories of foreign lands. The UNESCO Convention and the Cultural Property Implementation Act constitute an effort to instill respect for the cultural property and heritage of all peoples. The mosaics before us are of great intrinsic beauty. They are the virtually unique remnants of an earlier artistic period and should be returned to their homeland and their rightful owner. This is the case not only because the mosaics belong there, but as a reminder that greed and callous disregard for the property, history and culture of others cannot be countenanced by the world community or by this court.
. Gerstenblith, The Adverse Possession of Personal Property, 37 Buffalo L.Rev. 119, 127 (1989).
. See, e.g., Frye v. Commonwealth Inv. Co., 107 Ga.App. 739, 741,
The "demand and refusal” rule applied by the New York courts, however, constitutes one exception to this general approach. Under the "demand and refusal" rule, the statute of limitations for a replevin action does not run until the original owner makes a demand of the current possessor for the return of the property and the possessor refuses. See, e.g., De Weerth v. Baldinger,
Some courts adopt a slightly different approach — the O'Keeffe "discovery” rule — emphasizing the due diligence of the original owner, as in O'Keeffe v. Snyder,
. For more detailed discussion of this two hundred year development, see Bassiouni, Reflections on Criminal Jurisdiction in International Protection of Cultural Property, 10 Syracuse J. of Int’l Law and Commerce 281, 287-97 (1983).
. For a more detailed discussion of the UNESCO Convention, see Jora, The Illicit Movement of Art and Artifact: How Long Will the Art Market Continue to Benefit from Ineffective Laws Governing Cultural Property? 13 Brooklyn J. Int'l L. 55, 62-66 (1987), and for discussion of the United States’ implementation of the UNESCO Convention, see Note, Harmonious Meeting: the McClain Decision and the Cultural Property Implementation Act, 19 Cornell Int’l L.J. 311, 318-21 (1986).