One Prediction That Had Some Legs

Forecasting is an art not a science, and truth be known luck is probably the most single important factor if one gets it right, still I could not help but think back to one of my first posts of this year, 2011 --- the Year of the Non-minority? where I thought that we might see
more cases where what might be thought to be "non-minority" employees are claiming that they have been treated differently because of their race.
Now a few days before year's end the 5th Circuit decides Vaughan v. Woodforest Bank (5th Cir. 12/21/11). Ms. Vaughan, a white bank manager who managed a work force that was almost all black was terminated for what was described as "inappropriate comments in the presence of employees and customers that created a perception of racial discrimination and uncomfortable environment due to lack confidentiality."

The Court reversing a summary judgment in favor of the employer discussed the three comments that were said to underlie this conclusion. Without really saying so, the Court seemed to be saying that the comments did not seem to them to set a racial tone. Although its unclear how much it influenced the decision, it did note that the manager who made the decision to terminate Vaughan had a view that any discussions of race were problematic: "we cannot talk about race in the workplace" and "if you talk about race in the workplace it's racial discrimination."

Probably pushing my luck, but I sense that this particular type of case may have more than a one year run.

Why Employers Don't Like Statutes Creating Causes of Action

One of the responses by the employer community to almost any proposed statutory cause of action is not that it supports employers who engage in whatever conduct is going to be prohibited, but that by adding yet another statutory cause of action, there is yet one more way for a lawsuit to be brought.

If you accept my basic premise, when a a lawsuit has been filed, the employer has lost, and from that point on, the only question is how much, then that argument makes sense. The issue is finding the balance, and I would argue that we have plenty of such legislation and could have a "holiday" to use a phrase currently in the political discussion from any additional new statutory causes of action. Particularly since causes of action never go away.

What brought about this particular post was a decision last week by the 7th Circuit which is a true head scratcher,  DeGuelle v. Camilli (7th Cir. 12/15/11) [pdf].

Among other things you had a
  • A Sarbanes Oxley complaint filed against a privately held company, so there was no coverage;
  • A RICO action predicated on the actions related to tax accounting that the terminated employee had been raising for years, and where
  • the Court relied on the provision in SOX that prohibits termination of a whistleblowing employee, because it is a listed statute for a predicate act for RICO purposes.
But I think what got me even more than the unusual legal aspect of the case was the account of the type of situation that anyone who has been doing this long enough has seen before. An irreconcilable difference of opinion develops between an employee feels who feels there is serious wrongdoing, an allegation that the company does take seriously, but disagrees with, and the inevitable bad outcome that occurs.

Because it is a review of summary judgment in favor of the employer, which was reversed, the Court had to accept all the allegations as true, and by doing so you have to assume egregious conduct including intentional tax violations and cover up.

But what is also true is that the employer had already sued the employee in state court for disclosing confidential information and obtained a judgement of $50,000 against him. To be fair, that is on appeal.

I obviously have no knowledge of who is right and who is wrong, but I do know that we have created in a relatively short period of time a very complex web of legal arguments for employees who are fired to say their termination was illegal. This decision points out how such statutes interact to create even more ways. 

Whether that is good or bad is a legitimate question, but we really are reaching the point where a weighing of the good and bad is in order.  Not just an automatic more is better.

Imperial Winter Series Hillingdon Race 3 Saturday 17th December

Another bright sunny but cold day (5ºC) with a blustery west wind.  The long shadows even at 1pm served as a reminder that we are close to the shortest day.  After last week's experience we started with a lecture on safe riding but I am afraid there were crashes in both the 3rd and 4th cat races again.  The one in the 3rd cat race unfolded before my eyes on the short uphill section between the right hand and left hand bends.  Started as a wobble near the front and got amplified so that the rider a few back had nowhere to go but the grass where I believe he at least got a soft landing.  The woman in the 4th cat race [correction: I see from Lucy's report she was in our race, I had not noticed] was not so fortunate and was lying on the circuit for several of our laps.  I hope she is ok.
The racing seemed fast today.  Again we did not catch the 4th cats, but at least they did not catch us either.  There were some spirited breaks and we were lined out at several points as the pace increased to get them back.  A good race though not for me personally.  I punctured with one and a half laps to go.  I now take spare wheels with me but you cannot have a lap out to change your wheel with under 5 laps to go.  I fell rapidly off the back as my rear tyre deflated.  I had hoped there would be sufficient air left for me to finish the race but at half a lap to go I was onto the rims.  I was not going to ride my racing wheels on the rims so I walked the last half lap both to finish and to pick up my spare wheel at the hut.
My stats will be a bit out because of the puncture but from the start to when I started walking: .
52 mins at 23.8 mph, max 29.2mph.
I stayed to watch a teammate in the following E/1/2/3 race.


E/1/2/3 midrace


E/1/2/3 Finish

The 9th Circuit Does Their Part On Oracle Case, Extending California Labor Laws

One of the issues that I think has the potential to cause a lot of trouble for employers is the application of one state's labor and employment laws to employee who travel to work in another state.  In today's mobile world that is a lot of folks, especially employees located near state borders.

Basically, what happened is that Colorado based trainers who work for California based Oracle, brought a suit claiming that they should be paid in accordance with California wage and hour laws for the days they did training in California. The District Court rejected the claim. A 9th Circuit panel reversed. After a request for en banc hearing, the question was certified to the California Supreme Court. The Supreme Court basically gave the same answer the 9th Circuit had -- California law is applicable for the days the instructors worked more than a full day in California. See, Sullivan v. Oracle Corp. (Cal. S.Ct 6/30/11).

This week, the 9th Circuit completed the round trip (and engaged in a little mutual back patting), allowing as how, just like they did in their original opinion, the California Supreme Court got it right. They threw out some constitutional arguments on the part of Oracle and remanded the case for further proceedings. Sullivan v. Oracle Corp. (12/13/11).

How much training did they do? Not all that much.  One plaintiff did 150 days in Colorado, 32 in California and 52 days in other states. The next year, 150 in Colorado, 12 days in California and 20 days in other states and the third year of the period, 150 in Colorado, 30 days in California and at least 19 days in other states.   The other two plaintiffs had even less time in California.

The only thing that prevents this decison from being a total disaster is the following paragraph:
The contacts creating California interests are clearly sufficient to permit the application of California’s Labor Code in this case. The employer, Oracle, has its headquarters and principal place of business in California; the decision to classify Plaintiffs as teachers and to deny them overtime pay was made in California; and the work in question was performed in California.
Which keeps alive an argument that the case is only applicable to California based employers, although I am sure that cases are already in the works to challenge that aspect of the case.

Ultimately, I think this is an issue that the Supreme Court has to take up. From my prior experience there is precious little law on how we deal with state laws on "traveling" employees. 

Talk about an impact on commerce. 

Hopefully I am wrong, but I would not be surprised if this were one of the hot new things in 2012. And after enough are filed, maybe we will start to get some answers. Hopefully better ones than this weeks ruling.

Imperial Winter Series Race 2 - Saturday 10th December

A bright sunny day with a much lighter wind than last week but also a lot cooler at 6ºC.  I felt a bit more comfortable in the bunch this week only at the back on the occasions that the pace picked right up.  We passed the 4ths(or most of them) a couple of times today but on their penultimate lap, half a dozen or so of them passed us at the finish of their race, whilst at the same time they were lapping a substantial part of their own field.  We slowed to let them past and once their race finished the attacks in ours began.  Once again a small group got away n the final laps – Lucy’s report will have far more detail than I was able to observe.  At the bell I was at the back of the field and happy to stay there until we crossed the line.
Unhappily there was a crash in the 4th cat race, on the bend just before the clubhouse, and as I left the circuit two ambulances were there.  I hope those involved were not badly injured and recover soon.
Stats: 1h04m at av 24.9mph.  Max 30mph.

Imperial Winter Series Hillingdon Race 1: Saturday 3rd December

Courtesy Mark Hopkins who has some great shots
permission applied for.
A mild sunny winter's day with a stiff westerly breeze.  When I looked on the Imperial site this morning I saw the 4th cat race was fully booked so I grabbed one of the few remaining places in the 3rd cat race before they also went.  It is an indication of just how popular racing in general and the Imperial Winter Series in particular is.  There must be some WyndyMilla sponsorship as the pink flags were out and I am now the owner of a WyndyMilla bidon (always useful).
This was my first race for 4 months and it showed.  I sat in towards the back for most of the race.  A break of 6 got away entirely unnoticed by me and we alternated between the literally conversational and the fairly frantic.  We never did catch the 4th cats, who I think must have had an exceptionally fast race today.  Perhaps because it was all now about 7th place the gallop for the line started much later than usual and with half a lap to go we were free wheeling in a close packed group down the back straight.  I was happy just to hang on in there and come in with the bunch.
Stats: 1h05m at av 24.6 mph.  Max 29.7 mph.

Change of Venue Motion Filed in US v. Khouli et al. Previews Possible Defenses in Alleged Antiquities Trafficking Case



Federal courthouse in Brooklyn, NY.
Photo by Jim Henderson.  CC
The latest pleading filed by Salem Alshdaifat’s attorney in the case of US v. Khouli et al. asks for a change of venue. The defense argues that personal and financial hardships faced by Alshdaifat, a Michigan resident, urge a transfer of the case from the federal district court in New York to Detroit.

The motion provides a possible preview into some of the defenses that may be available in the case, including:
  • a characterization of the charged conduct as “regulatory-based criminal charges,”
  • a claim that the objects that are the subject of the multi-count indictment are neither stolen nor contraband, and
  •  an argument that Alshdaifat was a middle man who did not possess criminal intent.
A federal grand jury charged Alshdaifat in May 2011 with conspiracy to smuggle, alleging that he directed Mousa Khouli to wire $20,000 to Ayman Ramadan’s UAE bank account and that Alshdaifat received an airway bill from Ramadan showing that “wooden panels” were being shipped by Ramadan’s company in the United Arab Emirates to JFK airport in New York.  Moreover, Alshdaifat is charged with money laundering conspiracy.  He is also charged with smuggling goods into the country as well as fraudulent importation and transportation of goods.  The indictment describes the goods as an Egyptian inner coffin, Egyptian funerary boats and limestone figures, and a portion of an outer lid of a nesting Egyptian coffin set.  (A grand jury indictment is a mechanism that initiates a criminal case; it is not a finding of guilt.)

Writing in support of the motion for change of venue, Alshdaifat’s attorney previews the possible defenses in the case.  The following are excerpts from the Memorandum of Law dated November 21, 2011:
  • “The facts surrounding these charged criminal violations of the Customs laws arise out of the importation of rare Egyptian antiquities, including a three-piece set of sarcophagi and other funerary objects. These artifacts were allegedly shipped to the United States in several packages, variously by international air mail and by private air and sea carriers. The government does not claim that the Egyptian artifacts were stolen or were otherwise contraband when they entered the country. Instead, the government's charges rest on a theory that the alleged conspirators willfully falsely or vaguely declared these artifacts in entry documents into the United States because the importer purportedly had insufficient or incomplete documents of origin for the objects and this might have caused them to be detained at a United States port-of-entry if detected.” (emphasis in the original)
  •  “Mr. Alshdaifat was neither the U.S. importer nor the foreign exporter of the subject Egyptian artifacts. Based on the government's own claims, he is alleged to have been the “finder” or middleman that put the alleged foreign source of the artifacts (defendant [Ayman] Ramadan) in contact with the U.S. importer, or interested antiquities dealer (defendant [Mousa] Khouli). Despite being charged with a role that essentially ended prior to the importation process, Mr. Alshdaifat is charged with his co-defendants for knowingly participating in making false or intentionally incomplete statements on shipping labels on various shipments of these Egyptian antiquities.  The government's claims against Mr. Alshdaifat, therefore, rely on findings that he knew and intentionally joined a conspiracy to falsely declare the Egyptian artifacts in their shipment to the United States after his role in being a broker to the transactions was already completed.” (emphasis in the original)
  •  “In the Egyptian sarcophagi transactions, however, Mr. Alshdaifat only had a broker's interest and did not deal in the artifacts himself. Somehow, however, he now finds himself charged together with the principals of those transactions for allegedly violating technical Customs laws in the mailing and shipping of the merchandise, a process in which he did not participate.”
  • “The government’s position in support of criminal liability on the charged air mail shipments is based largely on the claim that Mr. Alshdaifat's co-defendants put these pieces in international mail or on an airplane as air cargo without completing more formal U.S. Customs paperwork with the specific intent to avoid Customs’ detection of these shipments and break U.S. Customs' law.  No lay witnesses exist to testify as to whether a defendant's act of putting these parcels in the mail or on an airplane constituted an intentional and clandestine conspiratorial effort to get the charged, legal merchandise into the United States.” (emphasis in the original and footnote omitted)
  •  “In any event, Mr. Alshdaifat is not even implicated in the government's discovery with doing anything – in New York or elsewhere – to assist in the importation of the merchandise. He is charged with putting the alleged source of the Egyptian coffins and artifacts (defendant [Ayman] Ramadan) in contact with the New York antiquities dealer who purchased them (defendant [Mousa] Khouli). The government must concede that Mr. Alshdaifat was neither the importer nor exporter of the charged shipments, and therefore had no role in the actual shipment of the merchandise, i.e., the packaging, labeling and placing of the merchandise in international mail.  As such, he never had any contacts with New York.”
  •  “The government does not charge that the Egyptian coffins and funerary objects were stolen property. The objects imported, therefore, are not contraband or unlawful to possess in the United States. The government's claims in this Indictment rest instead on the precarious theory that the method in which the artifacts were shipped into the United States was intentionally fraudulent even though the goods themselves were not banned or prohibited from entry. Indeed, the government does not even claim that the method of importation was intentionally fraudulent to avoid import duties, since antiquities are excluded from any import tax.” (emphasis in the original)
The defense contends that the government’s conduct materially affected Alshdaifat’s business.  Alshdaifat writes in a Declaration to the court dated November 21, 2011 that he started dealing in ancient coins in Canada, selling them primarily over the internet and at international trade shows.  He describes himself as a specialist in ancient Judean coins who gained admission to many coin auction houses and membership associations.  Alshdaifat adds that he was the moderator of the “Judean ancient coin section for the largest numismatic worldwide web community.”  Defense counsel’s Memorandum of Law explains:

“Mr. Alshdaifat's circumstances are particularly extraordinary. These include the fact that from his initial arrest, the government stacked the deck against him, making it untenable for him to get his fair day in court. On July 13, 2011, the government arrested Mr. Alshdaifat in his Michigan home and confiscated his entire business inventory of ancient coins, thereby effectively shutting his business down.  It did so despite the fact that the criminal charges in the Indictment had nothing to do with Mr. Alshdaifat's coin business. Subsequently, the government returned his coins but not until his business suffered a crushing, and possibly, fatal blow. Mr. Alshdaifat's reputation as an honest coin dealer has been battered; more importantly, he has been removed or suspended from all of the auction houses where he sold his coins. His business is in dire shape.” (emphasis in the original)

Information supplied to the court describes the relationship between Alshdaifat and co-defendant Ayman Ramadan.  Court papers remark that “Mr. Alshdaifat has purchased ancient coins before from defendant Ramadan in the United Arab Emirates ("U.A.E.") and has sold coins to defendant Khouli in New York. 
 That is how he knew two of the other parties charged in this Indictment.”

Egyptian Museum No Longer Accepting Cultural Object Inquiries (For Now)

The Egyptian Museum, Cairo
Source: Bs0u10e01, Creative Commons
According to an email by the General Director of The Egyptian Museum in Cairo, the museum will not be in a position to respond to inquiries regarding any artifacts until June 2012. This information is important to anyone conducting provenance research relating to Egyptian cultural objects. The email appears below:


To whom it may concern,

Due to the current situation in Egypt, I regret to say that the
Registration, Collections Management and Documentation
Department (RCMDD) and the curatorial staff of the Egyptian
Museum, Cairo will not be accepting any new requests for
object information and images starting from 1 December, 2011
until 30 May, 2012. This is due to the huge backlog that was
created following the events of January 28th, as well as the
renovations that are currently happening in the Museum.
Information on objects from our collection can still be obtained by
accessing the intranet version of the Museum Database on the
computers dedicated to scholars in the RCMDD office, located in
the museum basement.  The department is open to scholars from
9:30 am until 2:00 pm, Sunday-Thursday.

Sincerely,
Dr. Tarek El Awady
General Director,
The Egyptian Museum, Cairo

Source: Egyptologists' Electronic Forum, forwarded by Dr. Yasmin El Shazly.

Status Conference Held in Case of US v. Khouli, Alshdaifat, Lewis

Egyptian coffin seized by ICE
in the case of US v. Khouli et al.
Photo: ICE
The US District Court for the Eastern District of New York held a status conference in the criminal matter of United States v. Khouli et al. on November 17, 2011.  The court waived all three of the defendants’ presence at the hearing.  The defendants include Mousa “Morris” Khouli, Salem Alshdaifat, and Joseph A. Lewis II.  Ayman Ramadan remains a fugitive.

By way of letter dated November 4, 2011 and written by his attorney, Khouli sought leave to attend a coin show in Baltimore, Maryland, reportedly scheduled for November 16 and 20.  The short letter explained: “As an antiquities dealer, Mr. Khouli’s livelihood depends on his ability to attend coin shows and other similar events.”  The court granted Khouli’s request and extended the ruling, waiving the appearance of the other co-defendants.

Internet records reveal that the Whitman Coin & Collectibles Baltimore Expo was held during this time.  Palmyra Heritage, the name of the business owned and operated by Khouli, was listed as occupying booth #1107 while Holyland Numismatics, the name of the business owned and operated by Alshdaifat, was listed as occupying booth #1154 at the event that took place at the Baltimore Convention Center.

Salem Alshdaifat’s attorney filed documents soon after the November 17 status hearing requesting a change of venue in an effort to curtail any hardship to Alshdaifat, who lives in Michigan.  Submitted on November 21, the pleadings reveal more information about Alshdaifat’s background and his association with co-defendant Ayman Ramadan.  The pleadings also supply a preview of Alshdaifat’s possible legal defenses.  These topics are discussed here.

The next court status conference is scheduled for January 27, 2012.

CPAC Public Session Wrap-Up: Requests by Bulgaria and Belize for Cultural Property MoUs Considered

The Cultural Property Advisory Committee (CPAC) met between November 15 and 17, 2011, holding a public session on November 16. Professor Patty Gerstenblith, newly appointed chair and director of the Center for Art, Museum, & Cultural Heritage Law at DePaul University College of Law in Chicago, presided over the meeting.

Bulgaria and Belize both petitioned the United States government for a memorandum of Understanding (MoU) seeking cultural property import protections pursuant to Article 9 of the 1970 Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property (the UNESCO Convention). The requesting nations’ official public summaries appear here:  Bulgaria | Belize.  CPAC will ultimately provide advice about the adoption or rejection of these MoU requests.

CPAC received testimony to consider whether the countries’ requests satisfy the four determinations enumerated in the federal Cultural Property Implementation Act (CPIA). They include:

1. Whether the cultural patrimony of the requesting nation is in jeopardy from pillage;

2. Whether the requesting nation has taken measures to protect the cultural patrimony;

3. Whether import protections would be of substantial benefit to deter serious pillage, and whether there are other less drastic remedies; and

4. Whether the implemtation of import protections is consistent with the global exchange of cultural property for scientific, cultural, and educational purposes.

Roman ruins in Plovdiv, Bulgaria.
Author: Kyle Taylor
Creative Commons license.
CPAC received 503 online submissions prior to the public session, and seven people presented live testimony regarding the Bulgarian request. Those appearing in person before CPAC were:

• Kevin Clinton, President of the Board of Trustees of the American Research Center in Sofia (ARCS). See his prior written comments here.

• Brian Daniels of the University of Pennsylvania Museum's Cultural Heritage Center.

• Nathan Elkins, a professor of Greek and Roman art and history at Baylor University who focuses on ancient coins.

• Stephen J. Knerly, an attorney who routinely appears before CPAC on behalf of the Association of Art Museum Directors (AAMD). Read his previously submitted written statement here.

• Christina Luke Roosevelt, a lecturer and archaeologist at Boston University who appeared on behalf of the Archaeological Institute of America’s (AIA) Cultural Policy Committee. Read her previously submitted written statement here.

• Peter Tompa, an attorney appearing on behalf of the International Association of Professional Numismatists. He is an officer of the Ancient Coin Collectors Guild (ACCG) but did not appear in this capacity. His previously submitted personal comments appear here.

• Kerry Wetterstrom, a governing officer of the Ancient Coin Collectors Guild.

Maya archaeological site in Caracol, Belize.
Author: Pgbk87. Creative Commons.
Public comments were also submitted discussing Belize’s MoU request. 153 online submissions were made, and five people appeared in Washington, DC to present live testimony. They were:

• Brian Daniels of the University of Pennsylvania Museum's Cultural Heritage Center.

• Elizabeth Gilgan, an archaeologist who worked in Belize. She serves on the board of directors of Saving Antiquities for Everyone (SAFE). Her previous written submission appears here.

• Stephen J. Knerly, an attorney appearing on behalf of AAMD. Read his previously submitted written statement here.

• Christina Luke Roosevelt, appearing on behalf of the AIA’s Cultural Policy Committee. Read her written statement here. You can also find AIA President Elizabeth Bartman’s online statement here.

• Patricia McAnany, appearing on behalf of the Society for American Archaeology and an archaeologist who has performed research in Belize.

Cultural Heritage Lawyer Awarded Top 25 International and Foreign Law Blog Honors

Thank you to the readers of Cultural Heritage Lawyer making it become one of the Top 25 international and foreign law blogs.  The award correspondence received today says:

"I am pleased to announce that your blog has been selected as one of the LexisNexis Top 25 International & Foreign Law Blogs of 2011!"

"The Top 25 group includes some of the best talent in the blogosphere and creates an invaluable content aggregate for all segments of the International & Foreign Law practice. Most good blogs provide frequent posts on timely topics, but the authors in this year’s collective take their blogs to a different level by providing insightful commentary that demonstrates how blogs can—and do—impact and influence the world of international and foreign law."

You can always click on the Top 25 image at the top right of this web page to make this blog #1!

Updates from the Crown Court; R v McQuinn; R v Shapland

The Wirral Globe reports that today Mr McQuinn was cleared by a jury in Liverpool Crown Court of causing the death of David Noble by careless driving in Spital at 0950 on 20th October 2010.  Mr Noble was riding a bicycle at the time of the collision.  There was no suggestion that Mr Noble was in any way riding improperly when he was run down by a car driven by Mr McQuinn.  Mr McQuinn explained that the accident was unavoidable because the sun was in his eyes.  The jury took 17 minutes to return a not guilty verdict.

Last week the South Wales Evening Post reported that Mr Shapland was cleared by a jury in Swansea Crown Court of causing the death by careless driving of Olin Poulson after a collision on the A40 near Carmathen on 3rd September 2010.  A tachograph and telephone records revealed that Mr Shapland had been driving his articulated lorry at 52 mph (speed limit for lorries 40 mph) and had been on his hands free 'phone at the time of the collision.  He explained that Mr Poulson had turned right across his path as he was overtaking.

I am not privy to all the evidence in either case.  Clearly, in my view, each driver had a case to answer and it was only right that the prosecutions were brought.  The jury verdicts do not affect that and no prosecuting authority should expect a 100% success rate in the Crown Court.  It is an improvement over some cases in the past where prosecutions have not been brought and the drivers have never been called to explain their actions to a Court.

One Cyclist sues another; Brown v Brent & British Cycling

On the last weekend in August 2007 the Surrey Cycle Racing League with the assistance of the Army CU organised a three day stage race comprising four stages for 2nd and 3rd cat racers.  Proceedings kicked off with a short time trial up Boxhill on Friday evening and this was followed on Saturday afternoon with a 70 mile road race.  4th up Boxhill, but not so hot on the road race was George Brent, a 2nd cat rider with Addiscombe CC.  On Sunday, Stage 3 in the morning was an 11.5 mile time trial and the final stage on Sunday afternoon was a 60 mile road race on the Ewhurst Circuit with a final climb up Leith Hill.

The Ewhurst Circuit takes the riders down Ockley Road into Ewhurst where there is a sharp left at a mini-roundabout outside the Bull’s Head Pub.  At this point in the race (it may have been the 4th lap but this is not entirely clear), there was a breakaway group of 5 or 6 riders being chased by George Brent who was attempting to bridge the gap between the bunch and the lead group.  Given those circumstances it is not really surprising that he was going at speed and that he needed to take a racing line around the left hand turn, taking advantage of being a sole rider at this point.



Unhappily for both men another cyclist, Carlton Brown, came down Shere Road (from the right in the above Google earth shot) and turned into Ockley Road, apparently oblivious to the fact that a road race was in progress coming straight towards him.  The two cyclists collided close to the mini roundabout.  Any initial uncertainty as to which side of the central dotted white line the collision occurred was dispersed by the existence of video camera footage.  This demonstrated that the cyclists came together somewhere to the right of the white dotted centre line (as the picture and George Brent saw it.)

Mr Brown sued both Mr Brent and the British Cycling Federation who were ultimately responsible for the running of the race.  The report that I have seen indicates nothing about the extent of the injuries of either man but I see no indication that Mr Brent counterclaimed (as he might have done) against Mr Brown.

Mr Brown claimed that Mr Brent should not have crossed the white line in the middle of the road into his path and that he was riding too fast.  The Judge, His Honour Judge Atkins, sitting in the Croydon County Court accepted these allegations.  The fact that Mr Brent was competing in a road race did not exempt him from the obligation to comply with the Highway Code.  As the Judge put it:
            “as has been accepted, and I think rightly accepted, this was a race which was taking place on a public road and the fact that it was a race does not mean   that people can ride or drive in a different way.  They have to be aware that members of the public can use the road and they are governed by the same rules as anybody else.”

The Highway Code (rule 160) requires traffic to keep to the left of the centre line unless overtaking or turning right.  This is a rule that is breached frequently by cyclists (and I daresay motorcyclists) taking a line around a bend but I think the moral is that if you are going to do it, do it only in circumstances where you are quite sure nothing is coming the other way and that means not doing it on or near a junction.

Mr Brown also brought a claim essentially against the race organisers.  His most interesting allegation was that the organisers ought to have ensured that the road was closed to members of the public.  The judge gave that short shrift:
            “the position about that is that it is possible to ask the highway authority to close the roads.  It is obviously an extreme step to take.  I simply say that in the circumstances of this case I do not think it was a proportionate or appropriate step for the organisers to take.  I think that they under an        obligation to take all reasonable steps to ensure the safety of road users whether participating in the race or otherwise, and I think they did take all such steps.”

I hope the police forces who are most wary of races on the open roads will heed those words.  It is not proportionate or appropriate to close the roads for an amateur road race.

Mr Brown also criticised the organisers for their control of the race.   He said he should have been warned but the Judge found there were appropriate warning signs and marshals that Mr Brown did not see or hear.  A marshal had done his best to communicate to Mr Brown but, perhaps because Mr Brown was wearing ear-phones, had not got through (the Judge observed that Mr Brown was wearing head-phones but found both that that was not negligent and that it had not caused the accident).  Whether the lollipop signs that are now being trialled, and which will enable a marshal to compel a road-user to stop, would have prevented this unfortunate accident must be conjecture but certainly they should help.  He also said the organisers should have prevented Mr Brent crossing the white dotted line but the usual Commisssaire’s briefing (‘obey the highway Code’) had been given and there was no more that the organisers could reasonably have done.

Finally the Judge examined Mr Brown’s own responsibility for the accident.  He found that he should have heeded the warnings and was in the circumstances travelling too fast.  The finding that he was not negligent in wearing headphones is of potential interest.  The law (and the Highway Code) do not prohibit it but the DirectGov ‘Cycling Safely’ website advises “Stay alert! Don't listen to music or use a mobile phone while cycling – distractions cause accidents”.

 

Ultimately the Judge found Mr Brent two-thirds to blame for the collision and Mr Brown one-third to blame.  He acquitted the race organisers of any blame at all.

 

Although this is a County Court case (and strictly not citable to any future Court) it is illustrative of the duties that race competitors owe to members of the public who are not involved in the race.  Road races in this country are almost invariably very well organised and this is the first case of which I am aware where a competitor has been successfully sued.

 

Though not involved in the race I should declare an interest as a member of both the Surrey League and British Cycling.  I hope both cyclists have recovered.

Briefing Schedule Set in Appeal of Rubin v. Iran v. Boston MFA and Harvard

The case of Rubin et al. v. the Islamic Republic of Iran v. Museum of Fine Arts and Harvard University et al. is in full swing at the U.S. First Circuit Court of Appeals.  The appeals court yesterday set a briefing schedule that calls for the appellant’s brief to be filed on December 27 and the appellee’s brief to be filed 30 days thereafter.  [Update 1/27/12: The court extended these deadlines.]

In September, the United States District Court for the District of Massachusetts denied a request by Jenny Rubin and others to gain title to artifacts held by Harvard, the Museum of Fine Arts, and other Boston area cultural institutions.  The Massachusetts federal district court ruled that it was presented with no proof that Iran owned the antiquities in the museums; therefore the plaintiffs were not entitled to the cultural property.  Rubin and the others soon appealed the decision to the circuit court in October.

The Rubin plaintiffs wish to acquire the artifacts in order to satisfy a multi-million dollar court judgment they won against Iran for that government's role in sponsoring a 1997 terrorist bombing in Jerusalem. The suicide attack inflicted injury on the plaintiffs.

Photo credit: Nightryder84, detail of cup found at Marlik, Iran, Creative Commons.

From Sculpture to Scrap: The Theft of America’s Copper Heritage

Bronze, a mixture of copper and tin,
is found in many statues and plaques,
which are vulnerable to copper thieves.
Frederic Remington, ''The Bronco Buster,"
given to the Lyndon B. Johnson Library.
Public domain image.




Copper theft continues to run rampant throughout the country. Museums, cultural institutions, churches, art galleries, universities, and more have been impacted by the great raid on copper and bronze sculpture and plaques. That is because the price of copper is high, largely driven up by rapid industrial development in China and India.

The recent press report of a sword swiped from a copper statue located at Abraham Lincoln’s tomb site in Springfield, Illinois has become common over the last several years. And thieves may be less interested in the art and more interested in the metal’s melted value.

Many states have laws that regulate scrap metal recyclers so that law enforcement can uncover scrap metal crimes. In New Hampshire, Chapter 322 of the Revised Statutes Annotated mandates junk and scrap metal dealers to be licensed, requires photo identification from person’s turning in metal for scrap, and permits law enforcement access to business records. Maine just announced its intention to stiffen regulations. Last week legislation moved forward in Augusta that would have scrap metal dealers check photo identification and vehicle information for anyone selling scrap metal, place a 72 hour delay on processing the metal, and have payments sent by check to a physical address. Penalties for noncompliance could include a license suspension for scrap metal processors.

Protecting outdoor statuary from copper theft may not be easy, but contacting a security consultant for a site assessment should be a first step for any cultural institution. Security options can then be considered in light of the actual risks and the institution’s budget.  Members of the nonprofit International Foundation for Cultural Property Protection may be able to help.

If a theft occurs, it should be reported to the local police immediately. Be sure to tell the police about Scrap Theft Alert, where law enforcement can report a theft to the membership of the Institute of Scrap Recycling Industries.

PART II OF II: US Attorney Reveals Legal and Factual Claims in Forfeiture Lawsuit Against Cristo Portacroce – Case Reveals Italy’s Refusal to Turn Painting Over to Gentili di Giuseppe Family


Portrait of Girolamo Romano,
painter of the disputed artwork known as
Cristo Portacroce Trascinato Da Un Mangoldo.
In support of the warrant seizing Christ Carrying the Cross Dragged by a Rogue (Cristo Portacroce Trascinato Da Un Manigoldo) from The Mary Brogan Museum of Art and Science and in support of the civil complaint seeking forfeiture, the US Attorney for the Northern District of Florida supplies important details about the artwork’s asserted history.  Homeland Security Investigations (HSI) agent Phillip Reynolds describes facts in an affidavit submitted to the federal district court that permits the construction of the following timeline and details:

June 1914 - Art collector Federico Gentili di Giuseppe, Italian and of Jewish descent and living in Paris, purchased the Cristo Portacroce from the Crespi family collection. The 16th century painting by artist Girolamo Romano, was lawfully exported from Italy.

April 20, 1940 - Just before the Nazi invasion of France, Federico Gentili di Giuseppe died and left his estate to his son and daughter. They fled Paris without their possessions.

March 17, 1941 - The French Vichy government ordered the liquidation of the entire Gentili di Giuseppe estate.

April 23, 1941 - The Cristo Portacroce, and dozens of other paintings once in the Gentili di Giuseppe family’s possession, were auctioned. “Lemar” of Paris reportedly bought the Cristo Portacroce.

1994 - A Girolamo Romani catalog raisonné published by Alessandro Nova listed the Cristo Portacroce as having been owned by Federico Gentili di Giuseppe.

1997 – Descendants of Federico Gentili di Giuseppe sued the Louvre for the return of five paintings sold during the same auction as the Cristo Portacroce.

1998 - The Brera Art Gallery (Pinacoteca di Brera) took possession of the painting, although no details are provided regarding this transfer.

June 2, 1999 – a French court ordered custody of the five paintings at the Louvre to Federico Gentili di Giuseppe’s descendants, acknowledging that the 1941 auction was a “nullity” in that several painting were purchased by Nazis, including Luftwaffe chief Hermann Göring. The court also ordered the Louvre to pay 40,000 francs (approximately $8300).

After June 2, 1999 – The Art Institute of Chicago, the Boston Museum of Fine Arts, and the Art Museum of Princeton University all returned works of art to the Gentili di Giuseppe family heirs. Institutions in Berlin, Cologne, and Lyons did the same.

January 10, 2000 and March 14, 2000 – Lawyer Jean Pierre Sulzer twice contacted the the Brera Art Gallery by mail on behalf of Gentili di Giuseppe’s descendants, receiving no reply.

2001 – The Brera Art Gallery referred the restitution claims of the Gentili di Giuseppe heirs to the Italian Ministry of Culture, and attorneys for the family wrote a letter to the ministry on October 3, 2001 asking for the painting.

June 6, 2002 – The Commission for Art Recovery of the World Jewish Congress, a New York based group that seeks to restitute cultural property taken from Holocaust victims, wrote a letter to Italian President Silvio Berlusconi after the Ministry of Culture reportedly rejected the claims of the Gentili di Giuseppe family. The letter urged the president to reconsider Italy’s position.  (The contents of the letter suggest that the Brera made an earlier reply stating that it acquired the painting--and a second painting--in good faith.  The Brera's letter is not contained in court documents).

March 14, 2003 – The Italian Ministry of Culture responded to the Commission for Art Recovery’s intervention by saying that it carefully reviewed the matter in light of the Washington Principles and could not find that it could accommodate the request for repatriation. (See the Washington Principles here).

2006 – The Commission on Looted Art in Europe reportedly contacted the Italian government in an effort to have the Christo Portacroce returned.

March 18, 2011 – The Brogan placed the painting on display at its museum in Tallahassee, Florida.

November 4, 2011 – The loan contract between the Brera and the Brogan was due to terminate on November 6, and the painting was to be delivered to Italy.  Immigration and Customs Enforcement (ICE seized the painting on November 4, 2011 to prevent its return to Milan, and the US Attorney filed its in rem action against the artwork seeking its forfeiture.

The prosecution will seek to prove these alleged facts as it attempts to convince the federal district court that it has the evidence to forfeit the Cristo Portacroce.  Time will tell if any party steps forward to contest the claim.

See Part I for a discussion of the US government's asserted legal claims in this case.

PART I OF II: US Attorney Reveals Legal and Factual Claims in Forfeiture Lawsuit Against Cristo Portacroce – Argues That Painting Loaned to The Brogan by The Brera Was Stolen, Smuggled, and War Material


"The Brera,"
which once possessed the Romano painting
seized by ICE in Florida on November 4, 2011.
Author: Masi27185. Creative Commons License
Immigration and Customs Enforcement’s (ICE) Homeland Security Investigations (HSI) seized the painting known as Christ Carrying the Cross Dragged by a Rogue pursuant to a court authorized warrant on Friday, November 4, 2011. Judicial records reveal that federal officials chose to seize the painting at that time because the artwork, which was on loan to and openly displayed at The Mary Brogan Museum of Art and Science, was about to be returned to the Brera Art Gallery (Pinacoteca di Brera) in Milan, Italy. The Brera originally possessed and loaned the artwork, painted by Girolamo Romano around 1543.

The US Attorney’s Office for the Northern District of Florida filed a civil forfeiture action in federal district court in Tallahassee the same day as the seizure. Seizure permits the government to take possession of the painting, but a forfeiture order issued by the court would allow the government to gain title of the painting. That is why the US Attorney’s Office filed an in rem (against the thing) lawsuit, naming the artwork as the defendant. The case is captioned and docketed as United States of America v. Painting Known as Cristo Portacroce Trascinato Da Un Mangoldo, 4:11-cv-00571-RH-WCS.

Federal prosecutors argue in their civil complaint that forfeiture of the painting is proper under multiple legal theories. They cite the typical ones under the criminal statutes (Title 18 of the United States Code) and the customs statutes (Title 19 of the United States Code). But the government also makes a claim under Title 22, the foreign relations section.

First, prosecutors allege that the painting was smuggled pursuant to 18 USC § 545 and therefore must be forfeited under the terms of this criminal statute.

They also say that the artwork must be forfeited because it was illegally imported in contravention of the customs law at 19 USC § 1595a(c)(1)(A) since the painting was “stolen, smuggled, or clandestinely imported or introduced” into the United States.

Next, federal attorneys claim that the painting was about to be exported in violation of 19 USC § 1595a(d), a customs law requiring that the painting “shall be seized and forfeited to the United States” because its export would be “contrary to law.”

Federal lawyers also make a claim under the Illegal Exportation of War Materials statute at 22 USC § 401(a), saying that it mandates forfeiture of the painting: “Whenever an attempt is made to export or ship from or take out of the United States any arms or munitions of war or other articles in violation of law, or whenever it is known or there shall be probable cause to believe that any arms or munitions of war or other articles are intended to be or are being or have been exported or removed from the United States in violation of law” then the article may be seized and shall be forfeited.” (Emphasis added by the author).

Finally, the government makes the claim that the painting was stolen under 18 USC § 2314, the National Stolen Property Act, which criminalizes conduct whereby a person “transports, transmits, or transfers in interstate or foreign commerce any goods, wares, merchandise, securities or money, of the value of $5,000 or more, knowing the same to have been stolen, converted or taken by fraud.”

The court will decide if prosecutors possess the evidence to prove their case.  To date, the information prosecutors possess appears considerable. That material is discussed in Part II.

Museums at Risk - Results of the 2011 ICCROM-UNESCO International Storage Survey

Museums are at risk. That is the conclusion of the 2011 ICCROM-UNESCO International Storage Survey conducted between June and September by the International Centre for the Study of the Preservation and Restoration of Cultural Property and the United Nations Educational, Scientific and Cultural Organization. The published summary below shows significant deficiencies in museum storage, museum administration, risk management, and loss prevention.

Strategic planning, resource development, and risk preparation are crucial to maintaining first-class cultural institutions. Museums in need of assistance can contact the International Foundation for Cultural Property Protection (IFCPP) http://www.ifcpp.com/, RE-ORG http://www.re-org.info/, or other professionals who support cultural institutions.  The public, meanwhile, is encouraged to lend a hand to their local museums, libraries, and historical societies--both financially and by volunteering--so that history, art, science, and culture can be preserved and transmitted.  Many volunteer opportunities can be found at http://www.volunteermatch.org/.

A larger version of the report is available here.


CONTACT: www.culturalheritagelawyer.com

Legal update: R (on application of Kate Cairns) v Deputy Coroner of Inner West London

Today sitting in the Adminsitrative Court, Silber J has rejected the claim brought by Kate Cairns for a Judicial Review of the Inquest into the death of her sister Eilidh Cairns, who was fatally struck by an HGV in Notting Hill on 5th February 2009.  There were complaints about case management which appear to relate specifically to the way in which that particular Inquest was conducted.

Of broader public interest was the Deputy Coroner's decision not to make any recommendation pursuant to her powers under rule 43 of the Coroners Rules 1984.  This rule provides that:

"Prevention of future deaths
43.—(1) Where—
(a) a coroner is holding an inquest into a person's death;
(b) the evidence gives rise to a concern that circumstances creating a risk of other deaths will occur, or will continue to exist, in the future; and
(c) in the coroner's opinion, action should be taken to prevent the occurrence or continuation of such circumstances, or to eliminate or reduce the risk of death created by such circumstances,
the coroner may report the circumstances to a person who the coroner believes may have power to take such action."

As pointed out by Silber J, this rule provides the Coroner with a considerable degree of discretion, so that even if (a), (b) and (c) are all satisfied (which they surely are in all cases where cyclists are run down by HGVs), the Coroner may (not must or should) report the circumstances to a person who it is believed may have power to take such action.

What fortified the Judge in his conviction that the Coroner had not exercised her discretion in such a way that no reasonable Coroner could have done was that "PC Clark of the Collision Investigation [Branch of the Metropolitan Police] explained that he was unaware of anything which could be done to prevent accidents of the kind in which Miss Cairns was tragically killed".

The really worrying thing is that this counsel of despair from the police is both voiced and is so readily accepted.  A Collision Investigator ought to start from the premise that this type of collision is preventable - a clue is in his title, in that the Metropolitan Police (and most Coroners) have, unlike the Administrative Court, abandoned the term 'road traffic accident' for 'road traffic collision'.  The reason for the change in terminology is because of the potential to confuse 'accident' with 'unavoidable event'.  A Police Sergeant in the Metropolitan Police's Cycle Task Force reminded me of this change last week.  It does not take more than a moment's reflection to come up with the ideas of better (or any) mirrors, sensors, training and enforcement as areas for action that may eliminate or reduce the risk of a repeat of the circumstances that led to Eilidh Cairns's untimely death.   My reading of the rule is that it is concerned not so much with a specific action that would have necessarily prevented the death inquired into (sadly the facts seem to have remained obscure in Eilidh's case) but action that would reduce the risk of future deaths in the same circumstances.

All of us who cycle on London's streets know that the quality of lorry driver is highly variable.  Near misses from lorries are not pursued by the Metropolitan Police because (I learnt last week) a safe passing distance is thought to be too subjective.  The quality of response from employers of drivers who have passed much too close varies from the highly responsible to the shockingly irresponsible (I have had one example of each in the last few days).  It does not take many miles of cycling experience to recognize that action is required to reduce the number of HGV/cyclist collisions which so frequently result in death.  A 'nothing can be done' attitude would be unthinkable if considering deaths in an industrial, disease, terrorism or virtually any other unnatural premature death outside the context of road traffic collisions (maybe even especially in the context of pedestrians and cyclists - I will wait with interest to learn, for example, whether a report is made in relation to the recent M5 tragedy).

Action by whom, the police officer or Coroner may ask?  Happily the rule requires only that the recipient of a Coroner's recommendation may have power to take action.  I suggest the (new) Secretary of State for Transport, the (new) Metropolitan Police Commissioner and the Mayor of London as my candidates for persons who may have such power.

ICE Seizes Stolen Art From Florida's Brogan Museum - Said To Be Taken During WWII

ICE seizes Romano painting said to be stolen by the Nazis.  Photo courtesy of ICE
Immigration and Customs Enforcement (ICE) officials in Tallahassee, Florida yesterday served a seizure warrant on "Christ Carrying the Cross Dragged by a Rascal."  The painting had been held at the Mary Brogan Museum of Art and Science at the request of the US Attorney's office, northern district of Florida, while prosecutors determined whether the painting by Girolamo Romano’s was unlawfully taken from a Jewish family during World War II.  Now the artwork is now in federal custody.

Who will have final title and possession of the artwork ultimately will be determined by a federal district court judge.

[UPDATE: November 9, 2011 - Read more details here.]

Find the complete press release describing the seizure and issued by ICE here.  Also, listen to Chucha Barber, the Brogan Museum’s chief executive officer, who provides a short audio sketch of the ownership claims to the painting on PRI's The World.

Thanks go to Gary Nurkin for alerting me to this news.

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