Full opinion text
CONNELL, District Judge. On May 7, 1965 a collision took place in the Straits of Mackinac between the Ñorwegian Topdalsfjord and the American ore-carrying Steamship Cedarville of the Bradley Fleet of the United States Steel Corporation, as the result of which the Cedarville sank approximately 40 minutes thereafter. On May 15, 1965 the United States Steel Corporation, as owner of the Cedar-ville, filed a Petition for exoneration from or limitation of liability against three claimants who were the Administratrices of the estates of three seamen who lost their lives in this collision, and against many of the ship’s crew, who were potential claimants. Such action was filed in the United States District Court for the Northern District of Ohio, Eastern Division. A similar Petition was filed in the United States District Court for the Northern District of Illinois at Chicago by Den Norske Amerikalinje A/S, Owner of the Topdalsfjord, and another similar Petition was filed by the HamburgAmerikalinie, as Owner of the Motor Vessel Weissenburg, a ship which had been in close proximity to the collision, and which had, in fact, picked up all of its survivors. The United States District Court at Chicago transferred the Petition of the Owners of both such foreign vessels to the United States District Court at Cleveland, Ohio, and the docket of this court discloses some two years’ of filings, rulings, proceedings, conferences and pre-trials by counsel with the Court, thereafter. The Coast Guard conducted a lengthy investigation herein, and in addition thereto, all counsel took depositions of all witnesses herein concerned. This Court did not directly hear any witness, but all counsel had the privilege of reading to the Court whatever evidence it chose, from both the Coast Guard investigation and the depositions taken in these matters; this reading consumed approximately five weeks. Many witnesses testified in both deposition and Coast Guard proceedings. Some testified several times in both such proceedings. The question here presented to this Court by the reading of such testimony from these two sources is limited to the question whether punitive damages may be or ought to be assessed in this case. This was so because at the last in a series or pre-trial conferences Counsel for the three petitioning shipowners and the claimants entered into a stipulation whereby judgment was entered against U. S. Steel and Den Norske on the counts of exoneration and limitation and Hamburg-Amerikalinie was relieved of all responsibility subject only to a special agreement between the three petitioning shipowners. The stipulation further provides that the count for punitive damages proceed against U. S. Steel only. The counsel for both foreign ships worked out an arrangement with the United States Steel Corporation whereby they retired from the case, which was then to be defended by United States Steel Corporation alone, and the Court then undertook to decide the question first as to whether punitive damages were herein susceptible of application, the evidence elicited being limited only to what witnesses had theretofore testified in the Coast Guard Hearings and on the depositions previuosly taken. It was further agreed that after the Court so ruled, a Commissioner would then be appointed to determine what compensatory damages should lie. We then turn to the question whether, as a matter of law, punitive damages may be assessed in a proceeding of this nature. By way of background, however, we offer first this brief summary of the salient facts which give rise to this issue. Since this remaining phase of the case is limited to the issue of punitive damages, we concentrate our discussion upon those facts which bear upon that issue. The “Cedarville”, built in 1927, was a “self-unloader”, 604 feet long, with a 60 foot beam; it had 16 hatches with no water-tight bulkheads. Its equipment included a revolving conveyor belt 450 feet long and 4 feet wide contained within a tunnel below the ship’s holds along the center line of the vessel. At the bottom of each hold there was an opening through which the cargo passed down into the tunnel and onto the conveyor belt. Any water which might be taken into any one of the holds of the vessel through the shell necessarily passed down into the tunnel, and in the event of the breach of the shell of the vessel, the water, in passing through any compartment, would immediately find its way into the tunnel and thereupon fill all of the holds. The vessel had no water-tight bulkheads to contain the water in any compartment where the shell of the vessel might be opened up. It was admitted by the operating manager of the U. S. Steel fleet that in the event of a collision and the opening of the hull below the water line the vessel would “sink like a brick”. U. S. Steel’s fear of such a collision prompted it to provide a “collision mat” about 16 feet by 24 feet, which was intended to be lowered down over any opening in the ship’s hull to impede the flow of water into the vessel. This was a completely inadequate precaution against the ever-present danger of a collision. The “Cedarville” departed from the Port of Calcite on May 7, 1965 with a cargo of 14,411 tons of limestone. The “Cedarville’s” freeboard (the protrusion of the vessel above the surrounding water to its deck line) was 10 feet and Yx inch. Fog shrouded the area at the time of departure, and the fog signal was placed on automatic and the vessel proceeded at “full speed”. This was in violation of Rule 15 of the Great Lakes Rules of the Road which limits vessels to “moderate speed” in fog. The official navigational charts of the United States Coast Guard show recommended courses through the various waters. The recommended course after leaving Calcite was 320 degrees. Captain Joppich ignored the recommended course and fixed the vessel’s course at 317 degrees. He stated that the company Captains fixed their own courses; the Coast Guard course from Forty-Mile Point is 301 degrees, but Captain Joppich steered 305 degrees; at Cordwood Point Buoy the Coast Guard course is 270 degrees, but Captain Joppich steered 261 degrees; at Poe Reef the Coast Guard course is 281 degrees, but Captain Joppich steered 285 degrees; at Cheboygan Traffic Buoy, Captain Joppich steered the recommended course at 302 degrees, but for a very short distance, and he thereafter changed to 305 degrees and later on to 310 degrees. Had Captain Joppich followed the Coast Guard courses, he would have completely avoided the disastrous collision. Approaching from the opposite direction were the Weissenburg and about one mile in front the Topdalsfjord. All vessels were using radar in the fog, but the “Cedarville” was not plotting the oncoming vessels to determine their course and speed. As the “Cedarville” approached the Mackinac Straits, Captain Joppich reached an agreement with the Weissenburg for a port-to-port passing, but he was unable to make contact with the Topdalsfjord, which was one mile closer to him. Captain Joppich then blew one blast for a port-to-port passing, but he got no reply and he was unable to make contact with the Topdalsfjord by radio phone. Under these circumstances, with the vessels being between four and eight miles apart, Captain Joppich was required by Rule 26 of the Great Lakes Rules of the Road to sound the danger signal which he failed to do because he did not consider himself to be in an emergency. In attempting to excuse his violation of the Rule, Captain Joppich further testified that he was following the “prudent” Rule No. 27. Throughout his testimony, Captain Joppich defends by afterthought, but traps himself in contradictions. Thus, while seeking refuge in the “prudent” rule, he contradicted himself by first claiming that there was no emergency at the time he blew his first one-whistle blast for a port-to-port passing, and then claiming the protection of Rule 27 which applies only when the vessel is in immediate danger. He then resorted to another deception in claiming that it was not stated how far the vessels were apart, so that it could not be said that Rule 26 was applicable. This was likewise untrue for the rule specifically holds that the danger signal must be sounded if one vessel fails to understand the course or intention of the other, whether from signals being given or not answered irrespective of distance separating them. The question of distance is critical only when the vessels shall have approached within a half-mile of each other; at this point if either vessel is in doubt of the other’s intention, both vessels “shall reduce their speed to bare steerageway, and, if necessary, stop and reverse”. His wilful and deliberate failure to blow the danger signal as required when his first signal was unanswered was a substantial factor leading to the collision. Captain Joppich’s activities thereafter further reveal an incredible course of conduct ostending a complete indifference to law and to human safety. As the two vessels approached each other closer and closer, he blew the one-blast signal for a port-to-port passing on four successive occasions; the last one came when the “Cedarville” was literally in the maw of the collision itself. All during this time he drove the “Cedar-ville” at full speed and never once did he blow the danger signal, nor did he reduce speed to bare steerageway and reverse as required by Rule 26. Had he blown the danger signal even once, and had he reduced his speed to bare steerageway or reversed, he would have escaped the collision. If he had followed the Coast Guard course of 302 degrees, there would have been no danger of collision. The “Topdalsfjord” was far to his right, and when he changed to 305 degrees and subsequently even to 310 degrees, he could still have avoided the collision if he had known the course of the Topdalsfjord, which he could have ascertained simply by plotting the blips on the radar. Instead, he turned the “Cedarville” hard right to 325 degrees, which exposed it broadside to and directly in the path of the Topdalsfjord, with the catastrophic events to follow. The full speed in the fog, the refusal to follow the Coast Guard courses, the refusal to blow a danger signal, the refusal to reduce speed to bare steerage-way and to reverse when the Topdalsfjord failed to answer his one-blast signals constitute wilful and wanton misconduct directly related to the collision and the subsequent loss of life and personal injury. The record also supports the conclusion that United States Steel vested sole and exclusive discretion in the Captains of the vessels, and that the foregoing departures from the Rules were routine practices ratified by the highest echelon of the U. S. Steel Corporation. The wilful and wanton deviations from law and prudence on the part of the petitioner and its Captain which caused the collision are dimmed in importance by the outrageous misconduct following the collision in deliberately and improperly exposing the crew of the “Cedarville” to death and serious personal injury. The collision occurred at 0945 and the ice-breaker prow of the Topdalsfjord tore open a great gash in the “Cedar-ville’s” port side below the water line, which caused an immediate rush of water into her compartments via the conveyor tunnel. Captain Joppich rang the general alarm immediately and directed Chief Officer Piechan to examine the damage to the vessel. He then telephoned station WLC (owned and operated by U. S. Steel Corporation) and reported the collision, which information was transmitted within one or two minutes from the time of the collision on their private line to Captain Parrilla, Manager of the Bradley Fleet, a division of U. S. Steel Corporation, who was then in conference with Admiral Khoury, a top-ranking officer in the corporation office in Pittsburgh, Pa. Captain Parrilla refused to make contact with Captain Joppich, so he stated, and said he intended to leave the handling of the situation solely to the discretion of Captain Joppich. This was the only way Captain Joppich could communicate with Captain Parrilla. Immediately after the sounding of the general alarm, those men not on watch reported to their lifeboat stations and lowered the lifeboats part of the way down waiting for the order to abandon ship, but the order never came. He ordered the engineers to put the pumps into operation and pump water into certain of the tanks and to start the pump in the conveyor tunnel. The Weissenburg’s Captain May telephoned Captain Joppich that he was standing by and offered to take the crew off the “Cedarville,” but Captain Joppich refused the offer and asked that he get the name of the Norwegian ship which had struck him. About ten minutes after the collision, Chief Officer Piechan, after having examined the damage, reported to Captain Joppich that water was flooding the vessel and that the hole was too large for the 18 by 24 foot collision canvas to fit over it. At approximately 1002, about seven minutes after the report from the Chief Officer, the decision was made to beach the vessel. Captain Joppich testified that he alone made the decision, but by that time Captain Parrilla had . received another call which incorporatedChief Officer Pieehan’s report and he knew at that point that the vessel was “seriously holed”, that “she was taking water”, and he was also aware at that time of the decision to beach the “Cedarville”. Notwithstanding this knowledge and his own admission that the “Cedarville” would “sink like a brick” if she was holed, Captain Parrilla refused to take any action to instruct Captain Joppich or to discuss the situation with him, or so he claimed, stating further that he had given Captain Joppich absolute control over the vessel, and under no circumstances would he interfere with Captain Joppich’s discretion even if he were on the bridge of the vessel at the moment with Captain Joppich. Captain Parrilla’s testimony in this regard is so shocking as to merit brief quotation as follows (Tr. 335): “Q So that even if you knew that she was, in your opinion, going to go down, because of the fracture in the hull, and you knew that the Captain was going to beach her, and that she might go down, and in your opinion would go down during the course of the run to the beach, you still wouldn’t take any action but you would leave it to the Captain? A Absolutely. I think these decisions and these actions are his.” At the time of the decision to beach, the vessel had lost about four feet of her freeboard and was sinking at the rate of about three inches per minute. Notwithstanding this, Captain Joppich refused to give the order to abandon ship. After the decision to beach the vessel was made, Captain Joppich ordered the anchor pulled up, but it was fouled on the bottom. The anchor was freed but not until the engines were put in reverse, whereupon he ordered the engineers to “give her all she had”. In the meantime, the Weissenburg was standing by all the while waiting to take the men off the “Cedarville”. Captain May repeated his offer on two further occasions, stating that the Weissenburg was very close at hand with two of its lifeboats swung out ready to take the Cedarville’s crew aboard, but Captain Joppich refused these offers and refused to give the order to abandon ship. As Captain Joppich proceeded to navigate the “Cedarville” around the Weissenburg, Captain May made one last plea for the removal of the Cedar-ville’s crew in a most dramatic fashion, as follows: “A (Continuing) Yes, because that was the moment where the Cedarville nearly crossed my bow, and I was about, let’s say, two or three cable lengths of it, see, so the Cedarville must be somewhere over here in that moment. That was the moment, you see— it shows in my log book — when I stopped my ship not to collide with the Cedarville, and that was the moment when I asked him, I contacted the Cedarville again, ‘Please, Captain, which side do you prefer that I come alongside to take off your crew,’ and this was the moment, when he said, ‘get out of my way, get out of my way, I try to beach her,’ so I had to stop my ship. This is the time of 1002.” This Court regards the decision to beach the vessel without evacuating the men as an outrageous, indeed horrendous, act of misconduct on the part of Captain Joppich and United States Steel. Seventeen fateful, precious minutes had elapsed since the collision, giving the Captain the fullest opportunity to survey the damage; it was readily apparent that this ship would reach no beach. She was doomed at that point, and it was clear that she would take with her the crew unless he took immediate action to remove the men. Up to that moment he could have removed the entire crew with complete safety. The vessel had been dead in the water anchored to the bottom; the Weissenburg was immediately at hand with its lifeboats out so that the men could have been removed with virtually no danger, either by descending into the lifeboats or by having the Weissenburg come alongside as Captain May offered. At that point Captain Joppich could see that the vessel had already sunk into the water about three or four feet, and that she was steadily sinking at the rate of about three inches per minute. Said Captain Joppich, “I took a gamble” in trying to beach the vessel. This was a wilful, wanton act of misconduct of the worst order which this Court finds to be indefensible. He could have chosen to jeopardize his own life, but he had no right to jeopardize the lives of others by failing to remove the crew before embarking on the run for the beach. Had he so desired, he could have done so simply by directing the engine to be set at full throttle while he handled the wheel on the bridge. Having made the decision to beach, he turned the sinking vessel in the general direction of the shore, without knowing exactly where he was headed and how long it would take to reach the nearest shoreline. As the vessel proceeded toward the beach, the men stood by waiting for the order to abandon ship with their life-jackets on, but the order never came. Without such an order, none of the men were authorized to leave the vessel. The men in the engineroom stood by their posts and the men on duty on deck likewise remained at their posts. All the crew showed great courage, obedience to duty and dedication to the service in the highest traditions of the American Merchant Marine. All the crew performed their duties. This, however, their leadership failed to do, at great cost to the crew. As the mortally wounded vessel labored through the water, sinking steadily at the rate of three inches per minute, her speed was cut down to two or three miles per hour. Captain Joppich was unmoved, however, although he could clearly see the vessel sinking steadily and the momentum of the ship so low as to make the chances of a successful beaching absolutely nil. Yet, he refused to give the order to abandon ship when the lifeboats could still have been placed in the water while she was barely moving and steadily sinking. He sent a man below to get him a lifejacket. Finally, when the decks were awash, he stepped out of the pilothouse, leaving the third mate and the wheelsman on duty inside, and the engineroom crew on duty pursuant to his orders down in the lowest levels of the engineroom. Even at this late moment lives might have been saved if he had uttered the two fateful words. It seemed as though the vessel was struggling valiantly to keep herself afloat and on an even keel until the last instant so that its loyal crew could be rescued, but Captain Joppich was coldly steadfast in his determination that the crew not abandon the ship. The end came quickly as the decks came awash. The “Cedarville” convulsed and capsized throwing the men, a lifeboat and a raft into the water as she went down taking with her the remainder of the trapped crew. Some of those thrown clear into the water were sucked down but were brought up again by the lifejackets. Captain Joppich, who had stepped out on the bridge from the pilothouse when he saw that the end was near, was thrown clear off the vessel from his high perch. The third mate, Cook, whom he left on duty in the pilothouse, was sucked under and he suffered the same agonizing fate as the others who were trapped in the vessel. Even greater loss of life was averted by the commendable action of the Captain of the Weissenburg. Recognizing that the “Cedarville” was in trouble, Captain May followed her with his lifeboats in a ready position for launching. He detected the sinking on his radar and he heard the cries of the men in the water. His forthright action in putting his lifeboats in the water and directing them to the area where the “Cedarville” went down unquestionably saved the lives of many of the survivors. He saved all who were saved. Ten men perished in the water; four from the engineroom department, Chief Engineer Lamp, Third Assistant Engineer Radtke, Stokerman Jones and Oiler Wingo; five men in the Deck Department lost their lives, Third Mate Cook, Deck Watchman Fuhrman, Deck Watchman Jungman, Wheelsman Haske and Wheelsman Asam; one man in the Steward’s Department, Bredow. The remaining members of the crew suffered the physical ordeal of exposure in icy water and the mental anguish of death staring them in the face. From this background, we address our attention to the principies of law upon which this case hinges. Our threshold consideration is whether punitive damages may ever be assessed in a maritime proceeding. Preliminarily, however, we deem it appropriate to discuss the peculiar employment relationship between seamen and their employers and between the crew of a vessel and its Master. As stated by the Supreme Court in Southern Steamship Company v. N. L. R. B., 316 U.S. 31, 38, 62 S.Ct. 886, 890, 86 L.Ed. 1246 (1942): “Ever since men have gone to sea, the relationship of master to seaman has been entirely different from that of employer to employee on land. The lives of passengers and crew as well as the safety of ship and cargo are entrusted to the master’s care. Every one and every thing depend on him. He must command and the crew must obey. Authority cannot be divided. These are actualities which the law has always recognized. On the one hand, it has imposed numerous prohibitions against conduct by seamen which destroys or impairs this authority.” In the maritime field, therefore, there must be abject obedience to orders from the moment the seaman enters service until his discharge. It is settled that this condition of the seaman’s contract is a singular exception to the Thirteenth Amendment’s prohibition against involuntary servitude. Robertson v. Baldwin, 165 U.S. 275, 288, 17 S.Ct. 326, 41 L.Ed. 715 (1897). As a consequence, the relationship between the owner of a vessel and its crew fashions a unique doctrine which places the employer in loco parentis to the seaman (Robertson, supra at 287, 17 S.Ct. 326) and makes the master the legal guardian of the seaman. The Iroquois, 194 U.S. 240, 247, 24 S.Ct. 640, 48 L.Ed. 955 (1904); Murphy v. American Barge Line Company, 169 F.2d 61 (3rd Cir. 1948). Thus emanates the ancient notion that seamen are “emphatically the wards of the admiralty”. Harden v. Gordon, 11 Fed.Cas.No.6,047, pp. 480, 485 (D.C.Me.1823) (Story, J.). These considerations necessarily reflect themselves in our decision today. The cause of action for punitive damages has always been recognized as an actionable right in admiralty. The Amiable Nancy, 16 U.S. (3 Wheat.) 546, 547, 4 L.Ed. 456 (1818). The Supreme Court of the United States, in Lake Shore and Michigan Southern Railway Co. v. Prentice, 147 U.S. 101, 13 S.Ct. 261, 37 L.Ed. 97 (1892), in referring to The Amiable Nancy, pointed out that the cause of action for punitive damages was eo-extensive in admiralty and the common law: “The rule thus laid down is not peculiar to courts of admiralty; for as stated by the same eminent Judge two years later, those courts proceeded in cases of tort upon the same principles as courts of common law, in allowing exemplary damages, as well as damages by way of compensation or remuneration for expenses incurred or injuries or losses sustained by the misconduct of the other party.” In Caldwell v. New Jersey Steamboat Company, 47 N.Y. 282 (1872), the New York Court of Appeals authorized exemplary damages in a maritime tort ease when a boiler on a steamboat exploded, severely injuring a passenger; the trial court had instructed the jury that if they found the injury resulted from culpable negligence (defining culpable negligence as either a wilful act or an act exhibiting other recklessness for the lives or safety of the passengers), they could consider that circumstance in awarding the amount of damage. Said the New York Court of Appeals: “The rule of law laid down by the court was substantially correct. Exemplary damages may be allowed not only in vindictive actions so called, such as assault and battery, false imprisonment, defamation and the like, but also in actions based upon negligence * * * And if the jury could find in this case, that the defendant omitted, either in the construction or management of the boilers the usual and ordinary means of protection, and that such omission caused the accident, it would evince that recklessness of the lives, and safety of the passengers, which would justify such damages.” In Ralston v. The States Rights, 20 Fed.Cas. pages 201, 209-210, Case No. 11,540 (E.D.Pa.1836), in a case arising out of a collision of two vessels, Judge Hopkinson, a noted admiralty authority, ruled that punitive damages could be awarded against a shipowner for injuries suffered through the wilful and malicious acts of the ship’s captain performed in the course and scope of his employment, as follows: “In our case, the management and steering of the State Rights were put into the hands and under the will and discretion of Captain Allen; it was his business, his employment and right, and if he abused his authority by mistake, by negligence, or willfully, to the injury of another, both he and his owners are responsible for it.” See also Day v. Woodworth, 13 How. 363, 14 L.Ed. 181 (1851), where the Supreme Court pointed out that the right of action to recover elements of exemplary damages “seems to have been borrowed from the civil law and the practice of the courts of admiralty”. The petitioner, United States Steel Corporation, has steadfastly challenged the power of a court, sitting in admiralty, to step beyond the assessment of mere compensatory damages, but the cases cited by petitioner in its trial brief lend discredit to its argument. Petitioner cites, with favor, The Amiable Nancy, 16 U.S. (3 Wheat.) 546, 547, 4 L.Ed. 456 (1818) for the proposition that the owners of a vessel may never be accountable for punitive damages. The language of the opinion, however, lends the clear implication that in the proper case, admiralty has power to assess exemplary damages:— Upon the facts disclosed in the evidence, this must be pronounced a ease of gross and wanton outrage, without any just provocation or excuse. * * * And if this were a suit against the original wrongdoers, it might be proper to go yet further, and visit upon them, in the shape of exemplary damages, the proper punishment which belongs to such lawless misconduct. The court continued, however, and stated that the owners of the privateer which had assaulted the libelants should only be accountable for compensatory damages in that case: But it is to be considered, that this is a suit against the owners of the privateer, upon whom the law has, from motives of policy, devolved a responsibility for the conduct of the officers and crew employed by them, and yet, from the nature of the service, they can scarcely ever be able to secure to themselves an adequate indemnity in cases of loss. They are innocent of the demerit of this transaction, having neither directed it, nor countenanced it, nor participated in it in the slightest degree. Under such circumstances, we are of opinion, that they are bound to repair all the real injuries and personal wrongs sustained by the libellants, but they are not bound to the extent of vindictive damages, (pp. 557-8). Petitioner has also turned the Court’s attention to Ralston v. The State Rights, 20 Fed.Cas. p. 201 (E.D.Pa.1836). That court quite clearly found against the first proposition of the petitioner’s argument : I think, therefore, that it is not legally correct, to say that a court cannot give exemplary damages, in a case like the present, against the owners of a vessel. * * * There is no subject upon which more repeated and solemn complaints have been made to the public, and few of a deeper interest to the community, than the accidents, always attended with frightful alarms, and sometimes by the most fatal and melancholy consequences, from the collision of steamboats. * * * Our river has been particularly exempt from these disasters, and it should be the determination, as it is the duty, not only of the courts when appealed, to, but of every good citizen, to keep it so. (p. 210). The most recent authority on the subject is made by Mr. Justice Stewart in a concurring opinion in Vaughan v. Atkinson, 369 U.S. 527, 540, 82 S.Ct. 997, 8 L.Ed.2d 88 (1962), which has drawn sharp criticism from petitioner and its gratuitous supporters, Den Norske Amerikalinje and Hamburg-Amerika Linie. In that case, the majority of the court awarded counsel fees in connection with a claim for maintenance and cure. In a concurring opinion, Mr. Justice Stewart, joined by Mr. Justice Harlan, pointed out that the right to counsel fees should have been based on the seaman’s traditional right to exemplary damages under the maritime law: “However, if the shipowner’s refusal to pay maintenance stemmed from a wanton and intentional disregard of the legal rights of the seaman, the latter would be entitled to exemplary damages in accord with traditional concepts of the law of damages.” McCormick, Damages § 79. The fact that punitive damages have never been visited upon a tortfeasor in an admiralty proceeding is no reason for precluding such a recovery. The petitioner and its supporters have adduced no persuasive authority nor have they articulated any persuasive reasoning which justifies such a preferential treatment to a maritime tortfeasor. In the absence of a specific rule to the contrary, there is no basis in law or reason for proscribing the recovery of punitive damages in admiralty. Maritime law draws on many sources; when there are no clear precedents in the law of the sea, admiralty judges often look to the law prevailing on the land. (Igneri v. CIE de Transports Oceaniques, 323 F.2d 257, 259 (2nd Cir. 1963)). Our next consideration is whether the death claimants, suing as they are under favor of the Jones Act, 46 U.S.C. § 688, are entitled to the recovery of punitive damages under that Act. Examination of petitioner’s position here indicates either that its legal research was incomplete or that its argument is fallacious. One of the purposes behind enactment of the Jones Act was to secure rights for seamen against their employers such as Congress had created on behalf of railroad workers through the Federal Employers’ Liability Act. 45 U.S.C. §§ 51 through 60. The original Act of 1908 included a wrongful death statute modeled after the celebrated English wrongful death statute, Lord Campbell’s Act, 9 & 10 Vict. Ch. 93 (1846), which permitted a certain class of survivors to sue for their pecuniary loss resulting from the wrongful death of their decedent. At common law the death of a human being, though wrongfully caused, affords no basis for the recovery of damages, and a right of action for personal injuries dies with the injured person. (St. Louis, I. M. & S. R. Co. v. Craft, 237 U.S. 648, 35 S.Ct. 704, 59 L.Ed. 1160 (1915); Insurance Co. v. Brame, 95 U.S. 754, 756, 24 L.Ed. 580 (1877); Baker v. Bolton, 1 Campb. 493, 170 Eng.Reprint (1808); Speiser, Recovery for Wrongful Death 2 (1966)). In the absence of statute, the general maritime law of the United States does not authorize any recovery for the death of a seaman, whether caused by negligence or unseaworthiness. Cortes v. Baltimore Insular Line, Inc., 287 U.S. 367, 53 S.Ct. 173, 77 L.Ed. 368 (1932). The Harrisburg, 119 U.S. 199, 213, 7 S.Ct. 140, 30 L.Ed. 358 (1886). In this context, the Federal Employers’ Liability Act became law. As originally enacted in 1908, it provided in § 1 (45 U.S.C. § 51) for two rights of action for negligence: (1) an injured employee’s right of action for personal loss and suffering, and (2) a right of action for the benefit of certain beneficiaries for any pecuniary damages sustained by them as a result of the employee’s death. An injured employee’s right of action for personal loss and suffering did not survive ; it died with him. Connors v. Gallick, 339 F.2d 381 (6th Cir. 1964). However, by an amendment adopted in 1910 adding § 9 of the Federal Employers’ Liability Act (45 U.S.C. § 59) provision was made for the survival of the employee’s claim for personal loss and suffering, and also for the benefit of the designated beneficiaries. In 1920, through the Jones Act (46 U.S.C. § 688), the wrongful death and survival aspects of the Federal Employers’ Liability Act were extended to seamen’s beneficiaries. Kernan v. American Dredging Co., 355 U.S. 426, 78 S.Ct. 394, 2 L.Ed.2d 382 (1958); Gillespie v. United States Steel Corp., 379 U.S. 148, 85 S.Ct. 308, 13 L.Ed.2d 199 (1964); Hutchison v. Pacific-Atlantic S. S. Co., 217 F.2d 384 (9th Cir. 1954). The Supreme Court held in Kernan that the Jones Act supersedes all state death statutes which might be applied to maritime deaths, and this decision has been recently reaffirmed in Gillespie. It is clear, therefore, that while there can be no recovery for the decedent’s personal loss and suffering before death if an action under the Federal Employers’ Liability Act or the Jones Act is strictly for the wrongful death of the decedent and predicated upon the provision allowing recovery for the loss sustained by designated beneficiaries as a result of the decedent’s death, recovery for the decedent’s personal loss and suffering before death may be allowed if the cause of action is based on the decedent’s right, which survives under the statutes, to recover for personal loss and suffering before his death. These two causes of action are distinct. Chicago, B. & Q. R. R. Co. v. Wells-Dickey Trust Co., 275 U.S. 161, 48 S.Ct. 73, 72 L.Ed. 216 (1927); Williams v. Louisville & Nashville Railroad Co., 371 F.2d 125 (6th Cir. 1967); Connors v. Gallick, supra. The importance of the survival statute cannot be overstated here; in law, these men, through their representatives, are raised from their watery graves and stand at the bar to demand all that the law extends to their more fortunate fellows who survived. Pimienta v. Marine Navigation Co., 258 F.Supp. 666 (S.D.N.Y.1966). The case relied upon by the petitioner, Cain v. Southern Ry., 199 F. 211 (D.Ct.Tenn.1911), was decided under the Act of 1908; even a cursory reading of the syllabus teaches that. In the body of the opinion we find this language: “It is clear under the Act of 1908, which was in force at the time this accident occurred in 1909, in case of an injury resulting in the death of an employé, no provision was made for the survival of the right of action of the injured employé himself. * * * Such survival of the injured employé’s right of action was expressly provided for by section 2 of the later amendatory Act of April 5, 1910 * * * I also think it clear that under the Act of 1908, before the amendment of 1910, in an action brought for the statutory beneficiaries to • recover damages for the death of an employé the recovery is limited to the pecuniary injury or loss sustained by the beneficiaries from the death of the deceased, and that the measure of damages is compensation for the loss of such pecuniary benefit as could have been reasonably expected to the beneficiaries, as of legal right or otherwise, from the continued life of the deceased,- excluding all consideration of punitive elements, loss of society, wounded feelings of the survivors and suffering of the deceased.” (p. 212). (Emphasis added). The above quotation, especially where we underscore, clearly shows that the Act of 1910, providing for the survival of the decedent’s right of action, includes punitive damages in the case of death. Claimants have cited Ennis v. Yazoo & M. V. Ry. Co., 118 Miss. 509, 79 So. 73 (1918) for the proposition that exemplary damages may be recovered in a death action instituted under the Federal Employers’ Liability Act. In that case a railroader had been electrocuted by an exposed line which had been brought to the attention of the railroad several times. The court, commenting on the wanton negligence of the employer-railroad, stated as follows: We will first discuss the question as to whether the instruction for punitive damages granted the plaintiff was erroneous. The record discloses abundant proof, in the testimony of Boswell, that the electric appliance was defective, and had been dangerous and defective for at least a week; it had shocked the witness Boswell six or eight different times; that he had reported the dangerous and defective condition of the appliance to Desmond and Detrick, both of whom were superior officers in charge of the work and employés in the shop; and that they had, notwithstanding this notice, continued to negligently and wantonly furnish the dangerous and defective electric apparatus to the employés until the death of Ennis was brought about by its use. So, we do not think the court erred in granting the instruction on punitive damages. It is perfectly clear that the survival action (45 U.S.C. § 59) permits the estate of a deceased railroader to sue for punitive damages. Petitioner suggests that the punitive damages may not be assessed under the Jones Act since that statute does not specifically provide for such a recovery. This argument fails of support. Exemplary damages are the product of the common law and are not a creature of legislation. Thus, while certain statutes may specifically authorize the recovery of punitive damages, such specific reference is neither common nor necessary. Recovery of exemplary damages has been permitted under federal statutes which employ general language as in the Civil Rights Act, 42 U.S.C. § 1983. See Basista v. Weir, 340 F.2d 74 (3rd Cir. 1965). Cf. also Nagel v. Prescott & Co., 36 F.R.D. 445 (N.D.Ohio, 1964); (Securities Act of 1933, 15 U.S.C. §§ 77a-77aa). As stated by the Court in Basista v. Weir, supra, “[T]he federal law permits the recovery of exemplary or punitive damages;” and held that punitive damages are recoverable under that Act which “merely states that the offending person ‘shall be liable to the party injured in an action at law.’ ” The Court is constrained, therefore, to find that under the Jones Act the right of a deceased seaman to sue his employer for punitive damages survives the seaman’s death and the claim may be pressed by his personal representative. We proceed to the next argument advanced by the petitioner, i. e., that the corporate owner may not be subjected to exemplary damages arising out of the misconduct of its subordinate agents. The main thrust of the claimants’ argument is devoted to a description of the Captain’s actions immediately prior to the collision and for those forty fatal minutes after the collision and prior to the sinking of the Cedarville. Claimants have also offered substantial evidence that officers of the highest rank in the petitioner’s corporate echelon actually participated in some of the critical misconduct in this case. The evidence stands uneontroverted that those officers were advised of the Captain’s intended actions, yet did nothing to avert their disastrous consequences. The claimants, therefore, contend that the petitioner is responsible for the misconduct of its Master. We are confronted initially with the decision of the United States Supreme Court in Lake Shore & Michigan Southern Ry. Co. v. Prentice, 147 U.S. 101, 13 S.Ct. 261, 37 L.Ed. 97 (1893): Exemplary or punitive damages, being awarded, not by way of compensation to the sufferer, but by way of punishment of the offender, and as a warning to others, can only be awarded against one who has participated in the offence. A principal, therefore, though of course liable to make compensation for injuries done by his agent within the scope of his employment, cannot be held liable for exemplary or punitive damages, merely by reason of wanton, oppressive or malicious intent on the part of the agent. This decision represents the choice of the Supreme Court then between several competing views of the common law. Pizitz Dry Goods Co., Inc. v. Yeldell, 274 U.S. 112, 115, 47 S.Ct. 509, 71 L.Ed. 952 (1927). The question of the propriety of assessing punitive damages against a corporation-employer, however, is not at all well “settled in the leading case of Lake Shore * * * ” (General Motors Acceptance Corp. v. Froelich, 106 U.S. App.D.C. 357, 273 F.2d 92, 93 (1959)); on the contrary, there is a great deal of uncertainty despite the above quoted excerpt from Lake Shore. In that case the court begins by showing exemplary damages are imposed only upon one who has participated in the wrong. It then points out that this axiom applies to the master-servant relationship so that some form of participation — either authorization or ratification — by the principal is necessary to expose him to liability. The court then states that a corporate principal is liable in the same manner as a natural person for the wrongs done by his agent. The problems which have arisen, ironically, seem to have their origin in the following dictum from Lake Shore: The rule has the same application to corporations as to individuals. This court has often * * * affirmed the doctrine that for acts done by the agents of a corporation, in the course of its business and of their employment, the corporation is responsible in the same manner and to the same extent as an individual is responsible under similar circumstances. * * * A corporation is doubtless liable, like an individual, to make compensation for any tort committed by an agent in the course of his employment, although the act is done wantonly and recklessly, or against the express orders of the principal. From this the argument is made that since a corporation can act only through its agents, and therefore is responsible for the acts of its agents, there need be no ratification of the agent’s misconduct to support a finding against the corporate principal. 1 Sutherland, Damages, 2d ed. 1893; Cf. also, Times Publishing Co. v. Carlisle (Journal Co. v. Carlisle), 94 F. 762, 774 (8th Cir. 1899). The divergence of opinion on this question has led treatise writers into a hopeless state of confusion. As stated by the author in Note, Corporations: Liability for Exemplary Damages, 37 Univ.Det.L.J. 751, 753 (1964): The treatise writers are in a similar state of confusion. Meehem states that for the awarding of exemplary damages the principal must also be guilty of wrongful motives. Thompson gives the reasoning for both sides of the question, stating that there are strong reasons for each position. Sutherland states that there is a split of judicial opinion but he seems to favor the no ratification necessary theory because the corporation had some degree of negligence in hiring the servant, and furthermore can act only through its servants. McCormick, following the federal rule, says that the majority rule requires ratification, but that there is no logical superiority for either side. This has been contradicted by Prosser who finds that the great majority do not require ratification since the corporation can act only through its agents. The Restatement of Torts requires ratification by the corporation or negligence in hiring. (citations and footnotes omitted.) The most authoritative treatment of the law of corporations, Fletcher, claims that the majority rule and the better reasoned rule, is this: But the better rule and the one supported by the weight of authority is that a corporation is liable for exemplary damages if the acts of its subordinate agents and servants were committed wantonly, willfully or maliciously, though not authorized or directed by the company or ratified by it after their commission. (10 Fletcher, CycL, Corporations, p. 669, Rev. ed. 1961.) This Court is in agreement with that view. Operating as we are, however, under a judicial system which pays homage to stare decisis, we are constrained to follow the Supreme Court’s admonition in Lake Shore even though we feel confident that the court would make a different choice were it confronted with the question today. Even if we are required to follow the Supreme Court rule, as enunciated in Lake Shore, we are not precluded from imputing the misconduct of Captain Joppich to the owner of the vessel. The Supreme Court’s rule would affix liability upon the owner for punitive damages if the owner expressly or impliedly authorized or ratifies the act. The record undisputably shows that the vessel owner had reposed total authority in the person of Captain Joppich to extricate the Cedarville from the dangers which confronted it after its collision with the Topdalsfjord. We need only refer to the following testimony from Captain Joseph Parrilla, General Manager of the Bradley Fleet: Q Tell us, Captain, why you made no effort to reach the Cedarville from the time you first received word that she was involved in a collision? A The Master of a vessel under these conditions has his hands pretty full, and I would never think of calling the Master, initiating a call on my part, when he is in the throes of important maneuvers of this kind. They know they can always get to us if they need assistance of any kind, and this is the real reason I made no attempt to reach the Master of the Cedarville. (Tr. 322). ***** Q I am not trying to get you to give any answer, Captain. What I am concerned with is that a whole hour elapsed, you had a ship out there that had been holed in a collision, she was taking water, the the Admiral of your Fleet is standing next to you, and no one makes an attempt to reach the Captain of this vessel. A I told you the reason why. Q You knew she was heading for the beach, didn’t you, and you knew that— A I knew from what information had reached me indirectly. Q Captain, didn’t you testify yesterday that the primary concern of every Master is for his crew ? A The safety of the crew. Q When you found out he had gone for the beach, what did you do about that information? A There was nothing to do at the moment. (Tr. 324) * * * * * Q Captain, I find it quite difficult to understand, if there was any question in your mind, and considering your testimony about your great concern for the crew, why you didn’t pick up the telephone and call the Cedarville. (Tr. 331) ***** * Q You didn’t want to interfere with the Captain? A He had his hands full. I presumed he did. I am saying that from my own experience, that if I were engaged in serious activities of that kind I would have no time for the telephone. I would be worried first about my crew’s safety and the safety of the vessel. Q Captain, isn’t it true that that phone by your side was the same as though you were on the bridge of that ship with the Captain? (Tr. 331-32). ***** A I don’t follow your analogy. Q If you had been on that ship with the Captain would you have conferred with him about the proper means to be taken under the circumstances ? A In what capacity on board ? Q If you had been on board that ship in your capacity as his superior, you would have wanted to confer with him about the proper means to be taken; isn’t that right? A The Master of the vessel is responsible for the actions he takes on the vessel under the circumstances. Q You mean that even if you had personally been on board in the pilothouse or on the bridge at the time this occurrence took place you would not have opened your mouth, but let the Captain do everything ? A It is impossible for me to say now on a hypothetical establishment as you have just narrated what I would do, and I don’t see how I can venture an opinion. Circumstances are different in each case, as you know. I don’t think I could venture an opinion what I would do unless I was confronted with the situation factually. (Tr. 332-33). ***** Q Captain, even if you knew that the fracture of the vessel was such that the vessel was taking sufficient water to capsize her, would you still follow the same rule and leave it to the Captain of the ship ? A Even if we knew that she was being listed; is that what you say? Q Yes. A I wouldn’t undertake to give the Master any instructions. He is out there on the scene. Q So that even if you knew that she was, in your opinion, going to go down, because of the fracture of the hull, and you knew that the Captain was going to beach her, and that she might go down, and in your opinion would go down during the course of the run to the beach, you still wouldn’t take any action but you would leave it to the Captain ? A Absolutely. I think these decisions and these actions are his. (Tr. 334-35). Thus a member of the highest echelon of the petitioner, clothed with total authority over the affairs of the Bradley Fleet, testified that Captain Joppich was in complete control of the vessel and that his decision was the decision of the corporation. The corporation thus bestowed full and unfettered authority upon the Master of this vessel; in such a case, the corporation must accept the responsibilities for the devolution of such authority. It has been held that a corporate employer may be compelled to pay exemplary damages if its employee who committed a wrongful act was so high in authority as to be fairly considered executive in character. Winkler v. Hartford Accident & Indemnity Co., 66 N.J. Super. 22, 168 A.2d 418 (1961). The record clearly discloses that in the operation of the vessel Captain Joppieh had no superior, was subordinate to no higher corporate officer, so that his actions were tantamount to those of the board of directors. It is equally clear that the Captain’s misconduct was ratified by the Petitioner. The record indicates that Captain Parrilla, the General Manager of the Bradley Fleet, and Admiral Khoury, the man in charge of the entire shipping enterprise of the Petitioner, were apprised of the collision within a few minutes of its occurrence. It is clear that they both knew that the ship had been holed, was consequently taking on great quantities of water, and that Captain Joppieh was keeping the men on in an attempt to beach the vessel. No action was taken despite Captain Parrilla’s testimony that he knew that the Cedarville “would sink like a brick” if her outer shell had been pierced and the hull opened, as was the case here. (Tr. P. 425). Not one word emanated from Pittsburgh to prevent this certain disaster. Under these circumstances we find that the silence of these top corporate officials reflects a ratification of the wrongful acts of Captain Joppieh. We begin with the admonition of the United States Supreme Court in Supervisors v. Schenck, 5 Wall. 772, 782, 18 L.Ed. 556 (1866): Like an individual, a corporation may ratify the acts of its agents done in excess of authority, and such ratification may, in many cases, be inferred from acquiescence in those acts, as well as from express adoption. Such ratification may be by express consent, or by acts and conduct of the principal inconsistent with any other hypothesis than that he approved, and intended to adopt what had been done in his name; * * *. It has been further held that— Silence of the principal, after knowledge of the unauthorized act of an agent, may, in connection with other circumstances, be sufficient evidence of ratification * * *. (Buckeye Cotton Oil Co. v. Sloan, 250 F. 712, 725 (6th Cir. 1918)). Thus, the ratification by the corporation need not be explicit, but may be implied from circumstances consequent to the wrongful act of its agent. Poweroil Mfg. Co. v. Carstensen, 419 P.2d 793 (Wash.Sup.Ct.1966); Almar-York Co. v. Ft. Worth National Bank, 374 S.W.2d 940 (Tex.Civ.App.1964). After the principal becomes aware of the wrongful act of its agent, ratification may be implied by acquiescence or a refusal to repudiate or prevent the full consequences of the wrongful act. See-Tee Mining Corp. v. National Sales Inc., 76 N.M. 677, 417 P.2d 810 (1966): Petroleum Anchor Equipment, Inc. v. Tyra, 410 S.W.2d 238 (Tex.Civ.App.1966). Thus, in American Photocopy Equipment Co. v. Ampto, Inc., 82 N.J.Super. 531, 198 A.2d 469, 474, where the “[defendant, through its president and secretary, remained silent in respect of acquiescence or disaffirmance when it was directly confronted through telephone calls” concerning the unauthorized and unlawful conduct of its agent, the court found that this silence constituted the ratification of its agent’s activities. The court relied, in part, upon The Restatement of Agency 2d, § 94 (1958) in finding that silence under these conditions constitutes ratification “when one is directly confronted with the unauthorized act of his agent, [and] according to the ordinary experience and habits of men, one would naturally be expected to speak if he did not consent.” (p. 474) Cf. also, 19 Am.Jur.2d, Corporations, § 1254, p. 660 (1965). While most of these cases concern ratification by a corporation of unauthorized contracts by its agents, these principles are equally applicable to unauthorized tortious conduct of a corporation’s agents. As stated by the author in 10 Fletcher Cyel., Corporations, § 4897, p. 605 (1961 ed): Although a tort may have been committed by an officer or agent of a corporation without authority and not in the course of his employment, the corporation may become liable therefor by reason of a ratification or adoption of the act. In this respect corporations are subject to the same rule as natural persons * * * (at p. 609) and if it ratifies an act, it becomes liable for personal or other injuries caused by negligence in doing the act.” Thus it appears, as a matter of law, that a corporation which ratifies an act of its agent may be exposed to liability for all the consequences of that act. It appears, as a matter of fact, that in the instant case the Petitioner’s highest officials were informed of the purported course of the Master and were aware that this course made danger a certainty and disaster a strong probability. Under such circumstances, there arose a duty to communicate with the Captain and take the necessary steps to safeguard the crew. Their silence in the face of this duty was a full and effective ratification of the decision of the Master to jeopardize, unnecessarily, the lives of the crew. Through their wide experience in lake shipping, both Captain Parrilla and Admiral Khoury should have realized the probable failure of the beaching operation. Unmistakably they knew that the retention of the full crew on board was unnecessary. Had the Chief Engineer, the late Reinhold Radtke, been authorized to leave the throttle open (it could have been notched or tied) and to lead his assistants from their engine room tomb to the relative safety of the deck, much less a lifeboat, their useless sacrifice could have been averted. Parrilla and Khoury knew this, yet they remained silent — or so they claim. Joppich did not need an audience — his 20 odd crew members standing on deck — to witness the inexorable decline of the ship’s free-board. Parrilla and Khoury knew this, yet they remained silent — or so they claim. The situation, as it was known to Parrilla and Khoury, cried out for an immediate evacuation of the entire crew. With the Cedarville at anchor for fifteen minutes, and the Weissenburg standing by to rescue the crew (and begging permission to do so), circumstances were most appropriate for disembarking the crew immediately after the collision. What did this crisis evoke from these two experienced men of the sea? Silence. Silence despite the specter of a Captain unnecessarily exposing his crew to death and injury. Silence despite the knowledge that the Captain’s efforts to beach the ship were doomed ab initio. It is ironic that this silence — undoubtedly motivated by a desire to secure the favor of the limitation statutes and thus reduce or contain the legal ramifications of the collision — now operates to expose the petitioner to a far greater liability. Had these officials been motivated by a righteous concern for the lives and safety of their obedient crewmen, rather than a concern for the possibilities of limitation, we would have no cause to speak in this case. But speak we shall for speak we must. It is the finding of this court that the conduct of Captain Martin Joppich is so oppressively contrary to the dictates of good seamanship, so callously in disregard of human safety, so wantonly careless of the rights of his crew as to justify the imposition of punitive damages, and we impute that conduct to his corporate employer. The petitioner countenanced, encouraged, authorized and ratified his actions. Many Maritime laws were built on the theory that, in time of danger, contact between sea and shore was physically not possible. Shore Officers could easily prove they did not ratify since there could not be knowledge. The Captain of a sailing vessel in the South Pacific couldn’t telephone his Owner’s Office in London, or his fleet commander in Oslo. But now communication is faster from ship to shore than an ordinary long-distance call. Here there was immediate contact with the shore office, which has immediate contact with the Fleet Office in Pittsburgh. There was a 40 minute opportunity of frequent communication. The ancient lack of privity was based on impossibility of communication. Today, the Lake Captain’s first call is to the ship-owner! A fair question the trial Judge may ask himself in such a case, since he may judge motivations and self-interest of all witnesses, is — Do the owners say they could make no suggestions under any possible conditions to their Captain, because Joppich was really too busy to receive them — or do they say so to enable themselves to claim there was here no privity ? Were not the owners in immediate touch with Joppich? And for what purpose? They could talk of but two things; the ship and the crew. There was no other comparably important thing to discuss. Was there anything said of the men ? In no conversation were the men ever mentioned. Captain Parrilla, on deposition, after the catastrophe, agrees that the safety of the crew is the primary concern of the Master when a ship is endangered; but he admits an utter failure to suggest this primary concern to this Master under these conditions during a half hours busy telephoning, when his Master’s primary concern was distinctly not the crew. He so admits by saying he chose to say nothing. There were really 40 minutes here in which this Master had the opportunity to contemplate, and deliberate, and premeditate, just what he was going to do. Is it proper or not for a Judge to consider that in his thinking, he got all the help the present art of communications could give? He looked down from his bridge on his audience of over 20 of his crew who were in their life-jackets aside of the life boats and in position to leave the ship safely, whenever he could give them sufficient consideration to emit the necessary two words, but somehow for no apparent or proper reason, except his lack of concern for their safety, during this entire 40 minutes