Matter of Bankers Trust Co., Civ. A. No. 75-364.

• Decision Date: 29 November 1982
• Docket Number: Civ. A. No. 75-364.
• Citation: 551 F. Supp. 609
• Parties: In the Matter of The Complaint of BANKERS TRUST COMPANY as Owner-Trustee and Monsanto Company as Chartered Owner, and Keystone Shipping Co., as Chartered Owner and Operator of the S.S. EDGAR M. QUEENY, for Exoneration from and Limitation of Liability.
• Court: U.S. District Court — Eastern District of Pennsylvania

551 F. Supp. 609

In the Matter of The Complaint of BANKERS TRUST COMPANY as Owner-Trustee and Monsanto Company as Chartered Owner, and Keystone Shipping Co., as Chartered Owner and Operator of the S.S. EDGAR M. QUEENY, for Exoneration from and Limitation of Liability.

Civ. A. No. 75-364.

United States District Court, E.D. Pennsylvania.

November 29, 1982.

Harry Lore, Philadelphia, Pa., for Chatterjee.

L. Carter Anderson, Philadelphia, Pa., for Dué and Dobson.

MEMORANDUM OPINION

WEINER, District Judge.

Presently before the court is the petition of Prava Chatterjee to vacate and set aside a settlement and release of the claim of her deceased son.

Pratrik Kumar Chatterjee, son of the petitioner, was killed on January 31, 1975 while a crewmember of the S.S. Corinthos which was struck while in port by the S.S. Edgar M. Queeny. An action for limitation of liability was brought by the shipowner in this court. On February 7, 1975 a monition was signed by Judge Fogel. On May 30, 1975 a claim on behalf of the petitioner as the survivor of Pratrik was filed by the Louisiana law firm of Dué and Dodson based upon an attorney-client contract that was executed by Anil Ghosal, son-in-law of the petitioner, under a special power of attorney purportedly executed by petitioner to Ghosal. Dué and Dodson settled the Chatterjee claim for $87,000.00. They then travelled to New Delhi, India where on December 17, 1975, they met the attorney for the shipowner, and were joined by Dean Agnihotri, an associate of Dué and Dodson in these claims. On the same date, a special power of attorney to Ghosal allegedly executed by petitioner in Calcutta was presented to the shipowner's lawyer. Ghosal executed the release. Dué and Dodson gave a check in the amount of $29,000.00 to Ghosal, and they allege that they also gave Ghosal $15,000.00 cash, without obtaining a receipt, to complete the payment of $44,000.00 due Chatterjee ($87,000.00 less fee and costs). On May 7, 1979, the petition to vacate and set aside the settlement was filed by the petitioner. Trial was held on October 18, 1982. Prior to trial many motions had been filed by the petitioner, and opinions and orders filed by this court.

Many serious allegations have been made to this court by petitioner's lawyer. He claims that petitioner had no knowledge that any proceedings were brought on her behalf. That she did not learn of the death of her son until October or November 1978. That she lived in Bangladesh between January 31, 1975 and February 1977, except for a period of one month in July or August 1975, and that she has lived in India since February 1977. Therefore counsel alleges that petitioner could not have signed a power of attorney to Ghosal in Calcutta on December 17, 1975, authorizing Ghosal to settle the claim for $87,000.00.

However, none of these claims have been presented by testimony of the petitioner herself in this court. These are allegations made by petitioner's lawyer who admits that he has never met with nor spoken directly with the petitioner. Thus these allegations of petitioner's lawyer are hearsay and are not evidence which can be considered by this court in making its determination. On several occasions, this court has ordered the petitioner to be present in this court to testify so that the court could have the opportunity to observe the petitioner's demeanor. Petitioner has never appeared in person. Her counsel has informed the court that petitioner cannot appear in person in this court because (1) it takes a minimum of two months to receive a passport in India, (2) petitioner knows no language other than Bengali, (3) as an orthodox Hindu widow she will not eat food cooked by another, (4) she is impecunious, and (5) her health will not permit her to travel alone without medical advice. We do not find that the petitioner is unavailable so as to create an exemption to the hearsay rule. See, Federal Rules of Evidence, Rule 804. The allegations of petitioner's counsel are clearly hearsay. Evidence must come from the lips of sworn witnesses and not from the unsworn statements of lawyers. Rutter v. Collins, 96 Mich. 510, 514, 56 N.W. 93, 94 (1893). Suggestions of counsel, however plausible, cannot take the place of evidence. United States v. Coal Cargo, 11 F.2d 805, 808 (E.D.Pa.1924). As stated previously, counsel has never met with and has never spoken to the petitioner. Counsel is not a witness. His argument is "a connected presentation of the conclusions of fact supposed to have been proved by the evidence tending in favor of his client." Wigmore on Evidence § 1806.

Any representations of fact made by counsel "must not be an assertion made upon his own credit; it must be based solely upon those matters of fact of which evidence has already been introduced or of which no evidence need ever be introduced because of the notoriety as judicially noticed facts." Id. For counsel to allege facts not of those "two sorts" is to become a witness, "and to be a witness without being subject to cross-examination is to violate the fundamental principle of the hearsay rule." Id. Counsel has asserted facts not in evidence and not of the notoriety to be judicially noticed and is therefore attempting to testify as a witness which is prohibited by the hearsay rule.

Petitioner's counsel has again moved that the court accept into evidence the transcripts of depositions taken in India of petitioner, her son Prabir, her daughter Arati Ghosal and her son-in-law Anil Ghosal which were taken in India before a Commission pursuant to an order of Judge Giles in the case of Chatterjee v. Dué et al., 511 F.Supp. 183 (E.D.Pa.1981). The Queeny interests in the case sub judice are not parties in the case before Judge Giles, and were therefore not present at the taking of the depositions in India, and had no opportunity to cross-examine. By our Memorandum Opinion and Order dated October 14, 1982 we denied the motion of the petitioner for the invocation of a commission in India to take testimony or in the alternative to use the transcript of the previous commission in India which was used in the case before Judge Giles.¹ We reiterate what we said at that time that the parties in the case before us, Bankers Trust Company, Monsanto Company and Keystone Shipping Co. are not parties in the action before Judge Giles² and therefore had no opportunity to cross-examine the petitioner or witnesses in India.

It is interesting to note that in this admiralty proceeding, the petitioner Mrs. Chatterjee argues that she never engaged the law firm of Dué and Dodson...