Hornby travelled to London, where he telephoned Scaioli and arranged to meet him. He flew to Switzerland, then drove down to Alessandria in northern Italy, where Scaioli lived, all as part of his cover that he had been in Switzerland on behalf of his principal, looking at art.
He met Scaioli twice, at the beginning of June and in the middle of July 2000. "To begin with, Scaioli was suspicious," Hornby says. "Who was I, he kept asking. Who was my client? Why were we so interested in Spanish and Latin American art? Gradually, however, he relaxed. I explained that my Ôclient' was not especially interested in art but thought there were some good investment opportunities at that moment. There had been a downturn in the market, and my client thought just now was a good time to buy. Obviously, my client wasn't only interested in Sorollas. That would have been too obvious. Nor was he only interested in £1m-to-£6m pictures. On that first meeting, I looked at photographs of art worth as little as $50,000. But I gently made it clear that we were looking to spend up to £3m as an investment; that sort of money talks."
Hornby drove back to Switzerland before returning to London. He let a few weeks go by, so as not to appear too keen, then contacted Scaioli a second time, with a request that the dealer send him a list of paintings, with prices and measurements, that were available. After a nerve-racking delay, the Alessandria dealer faxed back to the London "front" address that Hornby had established a list of paintings, with prices and measurements, which he said were available and which he would have ready for Hornby on his second visit. This list included a view of Malaga port by Sorolla. "The measurements told us that this was the right painting," says Singham.
At the second meeting, Hornby was taken by Scaioli to a separate apartment upstairs in the same building, where there were many antiques and scores of paintings in storage. "I sat on a sofa and, before long, after one or two other paintings had been brought in, the view of Malaga port was placed before me. I was allowed to take photographs." There was no question but that it was the same picture. Scaioli had with him the catalogue of the Spanish exhibitions, where it said that the painting had once been in the Gomez-Mena collection. He confirmed that it had been authenticated by Blanca Pons-Sorolla, and said he had bought it from the Cuban authorities about eight years before."We discussed this painting, and others," says Hornby. "At one point, Scaioli referred to Jeremy Scott of Withers [Sotheby's lawyers] and I left, promising to be in touch. I never was."
He didn't follow through because the Fanjuls, and their lawyer, Shanker Singham, were mindful that both Scaioli and Sotheby's were reasonably open about their involvement with the painting. This implies, they felt, that both parties were fairly sure of their legal ground: however objectionable morally it may be for Scaioli and Sotheby's to deal in this painting, any action in the courts by the Fanjuls might lead to another failure. Which is why they have now taken the course they have.
We can reveal here, for the first time, that the Fanjuls have begun an action, not in court in London but in Washington, DC, with the State Department, accusing Sotheby's and Scaioli of "trading with the enemy". This sounds dramatic, and the Fanjuls intend it to be. A panoply of US laws prevent US nationals and foreign subsidiaries of US companies from trading with Cuba. Those who do so face swingeing fines and risk up to 10 years in jail.
The US Trading with the Enemy Act was first passed in 1917 during the first world war, amended in 1933 to prohibit commercial transactions, then strengthened in 1992 to prohibit foreign subsidiaries of American companies from trading with Cuba. Legally, the case is significantly different from the art looted in Nazi Germany, which has claimed so many headlines. By no means all the so-called "Nazi loot" was expropriated by Hitler's government, but by private individuals. In the Fanjul case, any action brought by the family in the courts in Europe might fail, but the US does not recognise the legitimacy of the Cuban government. The American anti-Castro acts apply to subsidiaries of American companies, so even if the Sotheby's employees who were involved with the Sorolla were British, working in the London office, the company could still be prosecuted in the US.
Sotheby's, for its part, denies everything. It insists it has never had a financial interest in the Sorolla and was never asked to sell it, because it could not agree the reserve with the person who consigned the work to it, an individual it declines to identify. Sotheby's says this despite having asked Blanca Pons-Sorolla to authenticate the painting in 1995 because the auction house planned to sell it.
Sotheby's also said that it did not know, in 1995, when it had the Sorolla to sell, that it belonged to the Fanjuls. This is despite the fact that the lawyer who signed the letter acknowledging receipt of the Fanjuls' claim, in 1993, did not leave the company until 1996. Does this mean that the lawyer, who had been put on notice by the Fanjuls, did not alert the relevant departments? Says a spokeswoman: "It is hard, at this stage, to reconstruct the exact chronology of events. The person involved left the company eight years ago. Practices were very different in 1993 from now, after several years when pictures looted by the Nazis were so much in the news. As soon as we did know the Fanjuls were claiming this painting, we put them in touch with the lawyers for the current possessor."
But this is an area where the auction houses scarcely have a good track record. In the early 1980s, in the case of the Quedlinburg treasure, a fabulously valuable medieval reliquary that had been stolen from a church in Germany, both Christie's in New York and Sotheby's in London knew that the people trying to sell the treasure did not possess it legally, but neither alerted the German authorities, though Christie's had the treasure on its premises for weeks and returned it to the people who possessed it illegally.
In 1997, Sotheby's was caught on film helping to smuggle an old master painting out of Italy. In 2002, Alfred Taubman, boss of Sotheby's, went to jail for a year and a day for his part in a price-fixing scandal, in which the two main auction houses had secretly colluded to charge customers higher commissions. Taubman's opposite number at Christie's, Anthony Tennant, refused to go to New York to stand trial, and now cannot go to America without being arrested. These are less the actions of high-minded connoisseurs than of well-dressed barrow boys.
Repeated attempts to contact Bruno Scaioli have failed. Jeremy Scott, of Withers, declined to confirm whether Bruno Scaioli was his client. Alex Apsis says he cannot remember any dealings with regard to the Sorolla.
The Fanjuls are not persuaded by any of these responses. They point out that, at the least, Sotheby's had a painting on its premises that it knew was Fanjul property and yet it did nothing to alert the family, despite the exchange of letters in the early 1990s. "What kind of company is it," says Singham, the Fanjuls' lawyer, "that puts the interest of a well-known smuggler before that of the legitimate owners, who were forced to give up their art for political reasons? How distasteful is that as a company policy?"
But the family are now hoping to force the issue. With their connections, they have even held meetings with members of Congress and in the political office of the White House, in an attempt to prevail on President Bush to intervene personally in the matter with the State Department and the Treasury. Why might he do so? Well, their filing coincides with the US presidential election campaign. Since the Florida vote was so close last time, they hope that George W Bush will see that he might gain vital electoral support from naturalised Cuban exiles in Florida if he is seen to be helping their fellow countrymen.
Perhaps they are asking too much. "But how many more of our paintings are out there, waiting to surface at any moment?" says Pepe Fanjul. "Whichever way you look at it, Sotheby's haven't behaved right. I hope that the State Department will get to the bottom of this."
