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February 13, 1981

Paul H. DUE

The opinion of the court was delivered by: GILES


Before the court are motions to dismiss defendant Krusen, Evans and Byrne, and to dismiss plaintiff's claim for a declaration that Admiralty Rule F(4) is unconstitutional.


 This tort action, in the nature of a tort claim, is brought by decedent's mother, the alleged sole heir and representative of her son's estate. She is a resident of the People's Republic of Bangladesh and here sues several law firms and other persons who participated in a settlement of the death claim of the son, a citizen of India. He presumably was killed in navigable waters in Pennsylvania on January 31, 1975, as the result of a ship collision between the S.S. CORINTHOS and the S.S. EDGAR M. QUEENY. This action was not initiated to vacate and set aside the settlement. That is the subject of a separate, previously filed lawsuit, In re S.S. EDGAR M. QUEENY, Civil Action No. 75-364 (E.D.Pa., filed Feb. 7, 1975). See generally In re S.S. EDGAR M. QUEENY (Appeal of Chatterjee), 636 F.2d 37 (3d Cir. 1980). Rather, plaintiff contends there never was a settlement of her claim due to fraudulent acts of her son-in-law, an Indian citizen, who is not a party to this action. She denies knowledge of any settlement as well as authorization of any person to represent her interests. She avers that she was ignorant of the death of her son until after the date of the purported settlement.

 She seeks compensatory and punitive damages against the lawyer defendants for allegedly having negligently entered into the settlement agreement through Sri Anil Ranjan Goshal, her son-in-law, without certification of his asserted authority to act on plaintiff's behalf. Goshal, claiming to represent plaintiff and other family members, received the proceeds of the settlement. He is alleged by plaintiff to have falsely represented himself as her representative and to have forged her name to certain documents, including a power of attorney and a general release. These documents form the basis of the asserted death claim settlement in Civil Action No. 75-364.

 In addition to the tort damage, plaintiff seeks a declaratory judgment under the Fifth Amendment that the notice provision in Admiralty Rule F(4) "violates the equal protection of the laws in that the rule had a disparate effect on persons living in poorer nations, for whom the shipowner should be required to either advertise in such countries as well as give personal notice," since the heirs' last known addresses may be different from that of the decedent alien seamen.


 KEB, which represented the owner and agents of the QUEENY in the limitation of liability proceedings, has now moved to dismiss this tort and declaratory judgment action for failure to state a cause of action upon which relief can be granted pursuant to Fed.R.Civ.Pro. 12(b)(6). As to the negligence claim, KEB argues that plaintiff failed to allege the existence of an attorney-client relationship between her and KEB, and that as a matter of law, fiduciary responsibility should not be imputed. Plaintiff resists the motion, arguing that although no contractual attorney-client relationship existed, a fiduciary duty should be recognized. Specifically, plaintiff contends that the law firm's representative, the late Robert Cox, Esq., who participated in and finalized the settlement negotiations in India with the attorneys of decedent's representatives, should have investigated Goshal's authority, should not have paid the settlement proceeds to him or any person other than an estate representative appointed under the intestacy laws of Pennsylvania or some other competent jurisdiction (such as Bangladesh), and should have paid only after approval by the United States District Court for the Eastern District of Pennsylvania as guardian for the decedent.

 For the reasons set forth below, the motion to dismiss shall be granted.

 The allegations of the complaint, and all reasonable inferences flowing from them, shall be taken as true for purposes of this motion. E. g., Leone v. Aetna Casualty & Surety Co., 599 F.2d 566 (3d Cir. 1979); Bogosian v. Gulf Oil Corp., 561 F.2d 434 (3d Cir. 1977), cert. denied, 434 U.S. 1086, 98 S. Ct. 1280, 55 L. Ed. 2d 791 (1978); Tunnell v. Wiley, 514 F.2d 971 (3d Cir. 1975). See generally 5 C. Wright & A. Miller, Federal Practice and Procedure, Civil § 1357. According to these allegations and inferences, the relevant background of the complaint is as follows.

 On January 31, 1975, while docked, the CORINTHOS, on which decedent was then employed, was struck by the QUEENY in navigable waters within this judicial district. On February 7, 1975, limitation of liability proceedings were commenced as Civil Action No. 75-364, by the owners, operators, and charterers of the QUEENY. A monition was issued shortly thereafter directing all persons having claims arising out of the ship collision to make due proof of the same and to answer the allegations of the complaint for exoneration from, or limitation of, liability. Pursuant to Admiralty Rule F(4), notice of the monition and complaint was sent, on or about February 24, 1975, by KEB to decedent's last known address in Calcutta, India. Plaintiff does not allege a failure of actual receipt notice at decedent's Calcutta address. She alleges that she did not receive notice at her residence in Bangladesh and had no contemporaneous notice of any kind of either her son's death or the monition and complaint. *fn1"

 In May, 1975, Goshal filed a death claim on plaintiff's behalf in the limitation action. An agent of Due and Dodson, Bhishma K. Agnihotri (Dean of the School of Law of Southern University and Mechanical College in Baton Rouge), had traveled to India, his native country, between January 31, 1975, and February 13, 1975, and secured as clients for Due and Dodson various persons having claims arising from the ship collision. Among the documents secured by Agnihotri was an attorney-client contract signed by Goshal on February 13, 1975, ostensibly as plaintiff's authorized representative. Agnihotri also received from Goshal an undated Power of Attorney purportedly executed by plaintiff. The Power of Attorney named Due and Dodson as counsel for plaintiff. KEB is not alleged to have fraudulently obtained the signatures, to have secured the claimants, or at any time to have undertaken the representation of the interests of the plaintiff or any other claimants represented by Due and Dodson.

 In December, 1975, Due and Dodson, together with Agnihotri, went to New Delhi, India, and met with Robert Cox (KEB's representative) to negotiate and finalize the settlement of various maritime claims, including the death claim of decedent's estate. The KEB negotiations with Due and Dodson must be assumed to have been at arms length in the absence of any allegation by plaintiff to the contrary. A general release obtained by Due and Dodson through Goshal was delivered to Robert Cox. In exchange for ($ 87,000), "Prave Chatterjea, mother, A. R. Gosral, married sister, and Shri Prasanta Chatterjea and Sri Probir Chatterjea, brothers, individually and as personal ...

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