Jesse D. Fleming, and Cross-Appellee v. American Export Isbrandtsen Lines, Inc., and Cross-Appellant

MOORE, Circuit Judge

(concurring in part and dissenting in part):

I agree with the majority that there is sufficient evidence to sustain the finding of defendant’s negligence and the unseaworthiness of its ship; I do not agree with the majority that there is sufficient evidence to support the jury’s award of lost future wages in the amount of $12,000.

It is clear that the burden of proving damages is on plaintiff. 1

2 It is axiomatic that in order to obtain an award of lost future wages plaintiff must present evidence to show that the diminution in his present and expected salary is a consequence of his injury. 8 As this court has said:

The general principle [in determining loss of earning power] is easily stated. The objective is to place the libel-ant in the same economic position as would have been his if the injury had not occurred. We seek to accomplish this goal by a formula which, stated in oversimplified form, consists of determining what libelant’s annual earning power would have been but for the injury, deducting what it will be thereafter, multiplying the result by li-belant’s expectancy, and discounting the product to present value. 3

In this ease plaintiff did introduce evidence to show that his injury prevented him from fully performing as a *1334 carpenter, but he introduced no evidence to demonstrate that but for the injury to his hand he would have been earning $10,000 per year. 4 Moreover, there is substantial evidence to support the inference that the diminution in plaintiff’s yearly salary is in no way a result of the injury to his hand. 5 Because of the retirement of its two passenger ships, defendant no longer employs ships’ carpenters. 6 While there were two passenger ships operating out of the East coast owned by other companies at the time of trial, plaintiff offered no evidence to show that jobs for ships’ carpenters were available on these ships. When plaintiff left the ship upon which he worked, he “put in his card” for a job as a ships’ carpenter or seaman at the union hall; no such jobs were offered to him. The two carpenters who worked with plaintiff on the ship were not working as ships’ carpenters at the time of trial: one was employed as a security guard at the union hall earning $7,800 per year, the other as a school custodian (salary unspecified). In short, not only did plaintiff not meet his burden of proving that but for his injury his yearly salary subsequent to the accident would have been $10,000, but also the evidence inescapably gives rise to the inference that plaintiff’s injury has no causal relation whatsoever to the diminution in his yearly salary. Clearly “there is a complete absence of probative facts to support the conclusion reached” by the jury.

In my opinion the majority makes two basic errors in its analysis of the future award issue. 7 First, it implies that the impairment of one’s ability to perform his vocation is a necessary and sufficient showing to support a future dam *1335 age award. Thus, after holding that the evidence, viewed in the light most favorable to the plaintiff, was sufficient to support the jury’s future lost wages award, the majority reviews, again, the evidence showing that plaintiff’s injury prevented him from fully performing the tasks of a carpenter. 8 But clearly an injured plaintiff must show not only that his injury has impaired his ability to perform as he formerly did, but also that but for his injury he would be earning his former (or some higher) salary. 9 Second, the majority implies that the burden of proving damages is not on plaintiff, but rather that defendant has the burden of proving the nonexistence of damages: 10 “The defendant’s evidence did not establish that there were no ship’s carpenters positions available, but only that there were none available on defendant’s ships.”

Because a reasonable jury could not have found on the basis of any evidence that plaintiff’s earning capacity was diminished as a result of his injury, I would affirm Judge Levet’s decision to strike the jury award of lost future wages.

. As Brother Femberg said as a district court judge: “The burden of proving damage and damages is, of course, on plaintiff. . . .” Candiano v. MooreMeCormack Lines, Inc., 251 F.Supp. 654, 660 (S.D.N.Y.1966), aff’d, 382 F.2d 961 (2d Cir. 1967), cert. denied, 390 U.S. 1027 , 88 S.Ct. 1416 , 20 L.Ed.2d 284 (1968) (admiralty action) ; Shupe v. New York Central System, 339 F.2d 998, 1000 (7th Cir.), cert. denied, 381 U.S. 937 , 85 S.Ct. 1769 , 14 L.Ed.2d 701 (1965) (Federal Employers’ Liability Act). See also S. A. Peters and Timber, Inc. v. Lines, 275 F.2d 919, 930 (9th Cir. 1960) (breach of contract). Cf. Dixon v. Pennsylvania R.R. Co., 378 F.2d 392, 394 (3d Cir. 1967) (Federal Employers’ Liability Act).

. See McWeeney v. New York, New Haven and Hartford R.R. Co., 282 F.2d 34, 35 , 35 n. 3 (2d Cir.), cert. denied, 364 U.S. 870 , 81 S.Ct. 115 , 5 L.Ed.2d 93 (1960) (en bane) (Federal Employers’ Liability Act); Conte v. Flota Mercante Del Es-tado, 277 F.2d 664, 669 (2d Cir. 1960) ; O’Connor v. United States, 269 F.2d 578, 582 (2d Cir. 1959) (Federal Tort Claims Act).

. Conte v. Flota Mercante Del Estado, 277 F.2d 664, 669 (2d Cir. 1960). The courts that have used the Conte formula have specifically established the income that the plaintiff would have earned but for his injury. See Rosa v. A/S D/S Svendborg, 291 F.Supp. 84 , 87 n. 3 (S.D. N.Y.1968) ; Candiano v. Moore-McCormack Lines, Inc., 251 F.Supp. 654, 661 (S.D.N.Y.1966), aff’d, 382 F.2d 961 (2d Cir. 1967), cert. denied, 390 U.S. 1027 , 88 S.Ct. 1416 , 20 L.Ed.2d 284 (1968). See also LeRoy v. Sabena Belgian World Airlines, 344 F.2d 266 , 275 (2d Cir.), cert. denied, 382 U.S. 878 , 86 S.Ct. 161 , 15 L.Ed.2d 119 (1965) (suit arising out of a plane crash, governed by the Warsaw Convention) ; Brooks v. United States, 273 F.Supp. 619, 627-628, 634 (D.S.C.1967) (Federal Tort Claims Act); *1334 Petition of Petroleum Tankers Corp., 204 F.Supp. 727, 731 (S.D.N.Y.1960) (decided three days after Conte). Cf. Chesapeake & Ohio Ry. Co. v. Kelly, 241 U.S. 485, 489 , 36 S.Ct. 630 , 60 L.Ed. 1117 (1916) (Employers’ Liability Act).

. As the majority notes, plaintiff did testify in response to a question from the court that he had been offered a job as a construction worker working an air hammer, but that he had declined it because of the condition of his hand. But this evidence has no probative value on the issue of what plaintiff’s salary would have been but for his injury: the plaintiff presented no evidence to establish the yearly income of construction workers working air hammers at the time of trial. Plaintiff’s failure to introduce evidence to establish his “but for” income was deliberate; his theory at trial was that the impairment of his ability to fully perform as a carpenter is a necessary and sufficient basis for recovery of future lost wages:

[The Court] : . . . you have overlooked the fact as urged by Mr. Estabrook, and I think it is appropriate, at least, that there are no jobs available as ship’s carpenters; the market has fallen down; the passenger ships are being withdrawn from service.

The problem is this, sir — as I see it, you must show, I believe, and I have tentatively decided to charge, that you must compare his earnings not with what he earned before but what he could earn in his then present occupation if there were such jobs available.

You have a situation here which is not speculative.

It’s actual and there is no proof now that ship’s carpenters are earning any such sums as they were before the lay aside, before the ships were decommissioned.

Now, what answer have you given to that argument?

Mr. Buchsbaum: My answer to that argument is that even to take the converse, were there jobs of ship’s carpenters available, he can’t do it. Now that there are no jobs, there is no need to compare.

The only comparable job that we can look for is a carpenter ashore and he cannot work ashore. Transcript at 370-71.

. See generally C. McCormick, Law of Damages § 86, at 300 (1935) : “Since the effort is to predict future earning power, the latest data should be used, and therefore it is proper to show that changes have occurred in the prevailing rate of wages in plaintiff’s occupation since the injury.” (Footnote omitted.)

. Nor does it employ ships’ carpenters on any of its freighters. See opinion below, 318 F.Supp. at 201.

. The majority’s third error is its implication that the evidence supports the conclusion that plaintiff would have earned $10,000 per year but for his injury “in a different line of work.” But as indi *1335 cated (see note 4, supra), plaintiff introduced no evidence to establish that a job paying $10,000 per year was available to him in “a different line of work.”

. See the paragraph beginning “However, we hold that the evidence, viewed in the light . . . .”

. See notes 2, 3, supra.

. But see note 1, supra.