¹ The district court concluded that the Republic of Cyprus had “a legally cognizable interest in the mosaics sufficient to confer standing.” Autocephalous Greek-Orthodox Church of Cyprus v. Goldberg & Feldman Fine Arts, Inc., 717 F.Supp. 1374, 1377 n.1 (S.D. Ind. 1989).

² The plaintiffs initially filed an action seeking both possession of the mosaics and money damages. The trial court separated the issue of money damages and proceeded to address the replevin action. Id. at 1377. After the decision of the court of appeals, the district court entered its final judgment in favor of the plaintiffs, recognizing their valid title to the mosaics in issue and their right to exercise immediate and unimpaired possession of them. The district court ordered the defendants to bear the costs of the litigation and further granted the plaintiffs’ motion to dismiss the remaining damages claim. No. IP 89–304–C (S.D. Ind. May 3, 1991) (available on LEXIS, Genfed library, Dist file).

³ 717 F.Supp. at 1378.

⁴ Id. at 1381.

⁵ 917 F.2d 278, 282.

⁶ The district court concluded that the request by “the Turkish Republic of Northern Cyprus (’TRNC’) to intervene as a plaintiff for the purpose of recovering possession of the mosaics … strongly indicates that it, too, never authorized the removal or sale of the Kanakaria mosaics.” 717 F.Supp. at 1379 n.3. The court denied this request, stating that “to permit the Turkish Republic of Northern Cyprus to intervene in this case would create the incongruous result of having the Judicial Branch implicitly recognize that entity as a legitimate government in the face of explicit nonrecognition by the Executive Branch.” Autocephalous Greek-Orthodox Church of Cyprus v. Goldberg & Feldman Fine Arts, Inc., No. IP 89–304–C (S.D. Ind. May 31, 1989) (memorandum entry supplementing order of May 30, 1989, denying the motion for intervention).

⁷ 917 F.2d at 285 (quoting United States v. Wong Kim Ark, 169 U.S. 649, 668 (1898)).

⁸ The court considered the following factors: the recognition of the Autocephalous Church and its right to regulate its own internal affairs and to own and register property under the Constitution and laws of the Republic of Cyprus.

⁹ The Indiana Supreme Court departed from the traditional lex loci delicti commissi rule in tort cases in Hubbard Mfg. Co. v. Greeson, 515 N.E.2d 1071 (Ind. 1987). The court noted that the above decision declared that “[w]hen the place of the tort bears little connection to the legal action, … the following factors should be considered: 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.” 917 F.2d at 286–87 (quoting id. at 1073–74 and citing Restatement (Second) of Conflict of Laws §145(2) (1971)).

¹⁰ The defendants, those who financed and effected the transfer of the mosaics and those who held the principal monetary interest in the mosaics at the time of the proceeding, were all Indiana citizens; the money used for the purchase came from an Indiana bank; the profit-sharing agreement for the eventual sale of the mosaics stipulated that Indiana law would apply; and the mosaics were located in Indiana at the time of the proceeding. 917 F.2d at 287.

¹¹ Ind. Code §34-1-2-1 (1982).

¹² 917 F.2d at 288.

¹³ The discovery rule for determining the accrual of a cause of action was initially developed to address the difficulties plaintiffs frequently encountered when “in actions for medical malpractice and in products liability actions involving toxic drugs or chemicals, the statute has run before the plaintiff discovers that he has suffered injury, and sometimes even before the plaintiff himself has suffered the injury.” The discovery rule has been extended by judicial decisions and legislative enactments to “a miscellany of negligence and other tort actions.” W. Prosser & P. Keeton, The Law of Torts §30 at 165, 167 (5th ed. 1984) (citations omitted).

¹⁴ 917 F.2d at 289. The court of appeals referred to a decision of the New Jersey Supreme Court in which the discovery rule was used to determine accrual of a replevin action brought by Georgia O’Keeffe in 1976 to recover possession of three paintings stolen in 1946 from a gallery operated by her late husband, Alfred Steiglitz. In concluding that the discovery rule applies to an action for replevin of a painting, the New Jersey Supreme Court stated that “O’Keeffe’s cause of action accrued when she first knew, or reasonably should have known through the exercise of due diligence, of the cause of action, including the identity of the possessor of the paintings.” O’Keeffe v. Snyder, 83 N.J. 478, 493, 416 A.2d 862, 870 (1980).

¹⁵ 917 F.2d at 289.

¹⁶ The court noted the observation by the district court that the due diligence determination is “highly “fact-sensitive and must be decided on a case-by-case basis.’” Id. (quoting 717 F.Supp. at 1389).

¹⁷ Id. at 290. Cyprus had contacted the leading museums and Byzantine scholars throughout the world, international auction houses (including Christie’s and Sotheby’s) and the media, as well as several organizations in addition to UNESCO (e.g., the International Council of Museums, the International Council of Monuments and Sites, and the Council of Europe), to request assistance in recovering the Kanakaria mosaic. As stated by the court of appeals, “The overall strategy behind these efforts was to get word to the experts and scholars who would probably be involved in any ultimate sale of the mosaics.” Id. at 281.

¹⁸ The district court had concluded that the mosaics, once severed from the apse of the Kanakaria Church, could be the subject of a replevin action to recover possession of personal property. 717 F.Supp. at 1396.

¹⁹ 917 F.2d at 290 (quoting 25 Indiana Law Encyclopedia, Replevin §§1, 2, 11 (West 1960) (citations omitted)).

²⁰ The court of appeals noted the district court’s conclusion that the Church of Cyprus also had a superior title to the mosaics under Swiss law, “because Goldberg could not claim valid title under the Swiss ‘good faith purchasers’ notion having only made a cursory inquiry into the suspicious circum stances surrounding the sale of the mosaics.” Id. at 291.

²¹ 717 F.Supp. at 1398.

²² Id. (citations omitted).

²³ Judge Noland in the district court, to whom the decrees were presented at the later stages of the trial, considered them irrelevant. On appeal, Goldberg requested the court to “honor these decrees under the notion that in some instances courts in the United States can give effect to the acts of nonrecognized but ‘de facto’ regimes if the acts relate to purely local matters.” 917 F.2d at 291 & n. 14.

²⁴ By these decrees, the TFSC had confiscated “all movable property within the boundaries of the TFSC abandoned by its owner because of the owner’s ‘departure’ from northern Cyprus,” as well as all religious buildings and antiquities and all movable antiquities. Id. at 291–92.

²⁵ Id. at 292 (citing, inter alia, United States v. Belmont, 301 U.S. 324, 328 (1937)).

²⁶ In case of secession, the validity of the acts of the seceding government depends on its ultimate success in being recognized as an independent nation. This concept was developed in post-Civil War cases. Id. at 293.

²⁷ Id.

²⁸ Nov. 14, 1970, 823 UNTS 231, reprinted in 10 ILM 289 (1971) (entered into force for the United States Dec. 2, 1983). See also the implementing legislation enacted in 1983, Convention on Cultural Property Implementation Act, Pub. L. No. 97-446, tit. III, 96 Stat. 2351, 19 U.S.C. §§2601–2613 (1988).

²⁹ May 14, 1954, 249 UNTS 215. The difficulties involved in locating and recovering the cultural heritage of a nation plundered in time of war has been sadly demonstrated by the recent gulf crisis. Kuwait has requested assistance from UNESCO “to help prevent the possible illegal sale of tens of thousands of pieces of art pilfered during the Gulf War.” UNESCO Press Release No. OPI/NYO/91/6C (June 10, 1990).

³⁰ 9l7 F.2d. at 295.

³¹ For the last two reports, see UN Docs. A/44/485 (1989) and A/46/497 (1991). The unesco Intergovernmental Committee for Promoting the Return of Cultural Property to its Countries of Origin or its Restitution in Case of Illicit Appropriation assists states engaged in bilateral negotiations concerning the return of cultural property, as discussed in the reports referred to above.