
    SULSENTI v. CADOGAN S. S. CO., Limited.
    District Court, S. D. New York.
    Dec. 27, 1943.
    George Green, of New York City (Jacob Rassner, of New York City, of counsel), for libelant.
    Kirlin, Campbell, Hickox, Keating & McGrann, of New York City (Walter X. Connor, of New York City, and Victor Cichanowicz, of Brooklyn, N. Y., of counsel), for respondent.
   COXE, District Judge.

It is not clear from the evidence in this case just how the libelant was injured. The libelant testified that he fell when a metal cleat supporting one of the cargo battens broke. Yet DiLorenzo, the hatch foreman, in a statement made to the insurance carrier three days after the accident, said that “nothing broke or gave way.” And the history of the accident, apparently given by the libelant on his admission to the Staten Island Hospital, reads: “While working in the hold of ship a case fell and struck him on right side of his head and left leg.”

But even assuming that the accident occurred in the way that libelant now says it did, I still do not think there can be any recovery against the Steamship Company. Cargo battens are not intended to be used as ladders. The Queen Elizabeth, D.C., 209 F. 712; Aurigemma v. Nippon Yusen Kaisha Co., 238 N.Y. 183, 144 N.E. 495. All of the officers testified that such a use was not only improper but not permitted, and the libelant himself admitted as much in his examination before trial.

I do not credit the testimony of the libelant and his fellow workers that the third mate in a conversation with Di-Lorenzo, the hatch foreman, prior to the accident, refused to furnish a ladder and in effect invited the men to use the battens. Bain, the third officer, denied that any such conversation took place, and the libelant in his examination before trial made no mention of it. Moreover there are discrepancies in the testimony of the witnesses' regarding the conversation which discredit the whole story. There is no other evidence in the case from which it might be inferred that the officers had knowledge that the men were using the battens as ladders.

There may be a decree dismissing the libel with costs.  