Appendix B Topic Sentences
The fourth tip in Chapter 16 discussed the importance of topic sentences, emphasizing that they help readers follow your argument and help you organize your thoughts. Not every paragraph demands a topic sentence.
But many will benefit from one. Topic sentences often act as the initial Conclusion or “C” in the CRAC organizational strategy discussed on pages 56–58.As promised, this Appendix presents an example that contains unusually strong topic sentences. The passage is excerpted from Atlantic Sounding Co., Inc. v. Townsend, 557 U.S. 404, 408–18 (2009) (footnotes, section headings, and italics omitted). The topic sentences appear in bold; I encourage you to read only the topic sentences so that you see how well they guide readers. Only one topic sentence forces readers to wade into the paragraph, and it's still a strong sentence; all of the other topic sentences appear in bold, and they all foretell the contents of the paragraph spectacularly well.
This case evaluated whether a shipowner could be forced to pay punitive damages when it failed to provide “maintenance and cure” (basic support and medical treatment) to a sailor who fell onto the steel deck of the shipowner's tugboat. Note that this passage does not follow CRAC; each paragraph more closely resembles “CR”: the body of the paragraph substantiates the topic sentence. You will usually follow CRAC more closely. Nevertheless, these topic sentences provide a strong illustration of what topic sentences should do: guide readers. And writers.
Respondent claims that he is entitled to seek punitive damages as a result of petitioners’ alleged breach of their “maintenance and cure” duty under general maritime law. We find no legal obstacle to his doing so.
Punitive damages have long been an available remedy at common law for wanton, willful, or outrageous conduct. Under English law during the colonial era, juries were accorded broad discretion to award damages as they saw fit.
See, e.g., Lord Townsend v. Hughes, 2 Mod. 150, 86 Eng. Rep. 994 (C.P. 1676) (“[I]n civil actions the plaintiff is to recover by way of compensation for the damages he hath sustained, and the jury are the proper judges thereof” (emphasis in original)); 1 T. Sedgwick, Measure of Damages § 349, p. 688 (9th ed.1912) (hereinafter Sedgwick) (“Until comparatively recent times juries were as arbitrary judges of the amount of damages as of the facts”). The common-law view “was that ‘in cases where the amount of damages was uncertain[,] their assessment was a matter so peculiarly within the province of the jury that the Court should not alter it.’” Feltner v. Columbia Pictures Television, Inc., 523 U.S. 340, 353, 118 S.Ct. 1279, 140 L.Ed.2d 438 (1998) (quoting Dimick v. Schiedt, 293 U.S. 474, 480, 55 S.Ct. 296, 79 L.Ed. 603 (1935); alteration in original).The jury’s broad discretion to set damages included the authority to award punitive damages when the circumstances of the case warranted. Just before the ratification of the Constitution, Lord Chief Justice Pratt explained that “a jury ha[s] it in [its] power to give damages for more than the injury received. Damages are designed not only as a satisfaction to the injured person, but likewise as a punishment to the guilty, to deter from any such proceeding for the future, and as a proof of the detestation of the jury to the action itself.” Wilkes v. Wood, Lofft 1, 18–19, 98 Eng. Rep. 489, 498–499 (C.P. 1763); see also Pacific Mut. Life Ins. Co. v. Haslip, 499 U.S. 1, 25, 111 S.Ct. 1032, 113 L.Ed.2d 1 (1991) (SCALIA, J., concurring in judgment) (“[P]unitive or ‘exemplary’ damages have long been a part of Anglo-American law”); Huckle v. Money, 2 Wils. 205, 207, 95 Eng. Rep. 768, 769 (C.P. 1763) (declining to grant a new trial because the jury “ha[s] done right in giving exemplary damages”).
American courts have likewise permitted punitive damages awards in appropriate cases since at least 1784. See, e.g., Genay v.
Norris, 1 S.C.L. 6, 7, 1784 WL 26 (C.P. and Gen. Sess. 1784) (approving award of “very exemplary damages” because spiking wine represented a “very wanton outrage”); Coryell v. Colbaugh, 1 N.J.L. 77, 1791 WL 380 (1791) (concluding that a breach of promise of marriage was “of the most atrocious and dishonourable nature” and supported “damages for example’s sake, to prevent such offences in future” (emphasis in original)). Although some States elected not to allow juries to make such awards, the vast majority permitted them. See 1 Sedgwick §§ 352, 354, at 694, 700. By the middle of the 19th century, “punitive damages were undoubtedly an established part of the American common law of torts [and] no particular procedures were deemed necessary to circumscribe a jury’s discretion regarding the award of such damages, or their amount.” Haslip, supra, at 26–27, 111 S.Ct. 1032 (SCALIA, J., concurring in judgment).This Court has also found the award of punitive damages to be authorized as a matter of common-law doctrine. In Day v. Woodworth, 13 How. 363, 14 L.Ed. 181 (1852), for example, the Court recognized the “well-established principle of the common law, that in actions of trespass and all actions on the case for torts, a jury may inflict what are called exemplary, punitive, or vindictive damages upon a defendant....” Id., at 371; see also Philadelphia, W., & B.R. Co. v. Quigley, 21 How. 202, 214, 16 L.Ed. 73 (1859) (“Whenever the injury complained of has been inflicted maliciously or wantonly, and with circumstances of contumely or indignity, the jury are not limited to the ascertainment of a simple compensation for the wrong committed against the aggrieved person”); Barry v. Edmunds, 116 U.S. 550, 562, 6 S.Ct. 501, 29 L.Ed. 729 (1886) (“[A]ccording to the settled law of this court, [a plaintiff] might show himself, by proof of the circumstances, to be entitled to exemplary damages calculated to vindicate his right and protect it against future similar invasions”).
The general rule that punitive damages were available at common law extended to claims arising under federal maritime law. See Lake Shore & Michigan Southern R. Co. v. Prentice, 147 U.S. 101, 108, 13 S.Ct. 261, 37 L.Ed. 97 (1893) (“[C]ourts of admiralty... proceed, in cases of tort, upon the same principles as courts of common law, in allowing exemplary damages....”). One of this Court’s first cases indicating that punitive damages were available involved an action for marine trespass. See The Amiable Nancy, 3 Wheat. 546, 4 L.Ed. 456 (1818). In the course of deciding whether to uphold the jury’s award, Justice Story, writing for the Court, recognized that punitive damages are an available maritime remedy under the proper circumstances. Although the Court found that the particular facts of the case did not warrant such an award against the named defendants, it explained that “if this were a suit against the original wrong-doers, it might be proper to... visit upon them in the shape of exemplary damages, the proper punishment which belongs to such lawless misconduct.” Id., at 558; see also Barry, supra, at 563, 6 S.Ct. 501 (“In The Amiable Nancy, which was the case of a marine tort, Mr. Justice Story spoke of exemplary damages as ‘the proper punishment which belongs to... lawless misconduct’ “ (citation omitted)).
The lower federal courts followed suit, finding that punitive damages were available in maritime actions for tortious acts of a particularly egregious nature. See, e.g., McGuire v. The Golden Gate, 16 F. Cas. 141, 143 (No. 8,815) (CC ND Cal. 1856) (“In an action against the perpetrator of the wrong, the aggrieved party would be entitled to recover not only actual damages but exemplary, such as would vindicate his wrongs, and teach the tort feasor the necessity of reform”); Ralston v. The State Rights, 20 F. Cas. 201, 210 (No. 11,540) (DC ED Pa. 1836) (“[I]t 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”); Boston Mfg.
Co. v. Fiske, 3 F. Cas. 957 (No. 1,681) (CC Mass. 1820) (Story, J.) (“In cases of marine torts, or illegal captures, it is far from being uncommon in the admiralty to allow costs and expences, and to mulct the offending parties, even in exemplary damages, where the nature of the case requires it”). In short, prior to enactment of the Jones Act in 1920, “maritime jurisprudence was replete with judicial statements approving punitive damages, especially on behalf of passengers and seamen.” Robertson, Punitive Damages in American Maritime Law, 28 J. Mar. L. & Comm. 73, 115 (1997) (hereinafter Robertson); see also 2 Sedgwick § 599b, at 1156 (“Exemplary damages are awarded in Admiralty, as in other jurisdictions”); 2 J. Sutherland, Law of Damages § 392, p. 1272 (4th ed. 1916) (“As a rule a court of equity will not award [punitive] damages, but courts of admiralty will....” (footnote omitted))....Nothing in maritime law undermines the applicability of this general rule in the maintenance and cure context. See G. Gilmore & C. Black, Law of Admiralty § 6–13, p. 312 (2d ed.1975) (hereinafter Gilmore & Black) (explaining that a seaman denied maintenance and cure “has a free option to claim damages (including punitive damages) under a general maritime law count”); Robertson 163 (concluding that breach of maintenance and cure is one of the particular torts for which general maritime law would most likely permit the awarding of punitive damages “assuming... the requisite level of blameworthiness”). Indeed, the legal obligation to provide maintenance and cure dates back centuries as an aspect of general maritime law, and the failure of a seaman’s employers to provide him with adequate medical care was the basis for awarding punitive damages in cases decided as early as the 1800’s.
The right to receive maintenance and cure was first recognized in this country in two lower court decisions authored by Justice Story. See Harden v. Gordon, 11 F.
Cas. 480 (No. 6,047) (CC Me. 1823); Reed v. Canfield, 20 F. Cas. 426 (No. 11,641) (CC Mass. 1832). According to Justice Story, this common-law obligation to seamen was justified on humanitarian and economic grounds: “If some provision be not made for [seamen] in sickness at the expense of the ship, they must often in foreign ports suffer the accumulated evils of disease, and poverty, and sometimes perish from the want of suitable nourishment.... [T]he merchant himself derives an ultimate benefit [because i]t encourages seamen to engage in perilous voyages with more promptitude, and at lower wages.” Harden, supra, at 483; see also Reed, supra, at 429 (“The seaman is to be cured at the expense of the ship, of the sickness or injury sustained in the ship’s service”).This Court has since registered its agreement with these decisions. “Upon a full review... of English and American authorities,” the Court concluded that “the vessel and her owners are liable, in case a seaman falls sick, or is wounded, in the service of the ship, to the extent of his maintenance and cure, and to his wages, at least so long as the voyage is continued.” The Osceola, 189 U.S. 158, 175, 23 S.Ct. 483, 47 L.Ed. 760 (1903). Decisions following The Osceola have explained that in addition to wages, “maintenance” includes food and lodging at the expense of their ship, and “cure” refers to medical treatment. Lewis, 531 U.S., at 441, 121 S.Ct. 993; see also Gilmore & Black § 6–12, at 267–268 (describing “maintenance and cure” as including medical expenses, a living allowance, and unearned wages).
In addition, the failure of a vessel owner to provide proper medical care for seamen has provided the impetus for damages awards that appear to contain at least some punitive element. For example, in The City of Carlisle, 39 F. 807 (DC Ore. 1889), the court added $1,000 to its damages award to compensate an apprentice seaman for “gross neglect and cruel maltreatment of the [seaman] since his injury.” Id., at 809, 817. The court reviewed the indignities to which the apprentice had been subjected as he recovered without any serious medical attention, see id., at 810–812, and explained that “if owners do not wish to be mulct in damages for such misconduct, they should be careful to select men worthy to command their vessels and fit to be trusted with the safety and welfare of their crews, and particularly apprentice boys.” Id., at 817; see also The Troop, 118 F. 769, 770–771, 773 (D.C.Wash.1902) (explaining that $4,000 was a reasonable award because the captain’s “failure to observe the dictates of humanity” and obtain prompt medical care for an injured seaman constituted a “monstrous wrong”)....
The settled legal principles discussed above establish three points central to resolving this case. [This topic sentence was, deliberately, not placed in bold.] First, punitive damages have long been available at common law. Second, the common-law tradition of punitive damages extends to maritime claims.... And third, there is no evidence that claims for maintenance and cure were excluded from this general admiralty rule. Instead, the pre-Jones Act evidence indicates that punitive damages remain available for such claims under the appropriate factual circumstances. As a result, respondent is entitled to pursue punitive damages unless Congress has enacted legislation departing from this common-law understanding. As explained below, it has not.
The only statute that could serve as a basis for overturning the common-law rule in this case is the Jones Act. Congress enacted the Jones Act primarily to overrule The Osceola, supra, in which this Court prohibited a seaman or his family from recovering for injuries or death suffered due to his employers’ negligence. To this end, the statute provides in relevant part:
“A seaman injured in the course of employment or, if the seaman dies from the injury, the personal representative of the seaman may elect to bring a civil action at law, with the right of trial by jury, against the employer. Laws of the United States regulating recovery for personal injury to, or death of, a railway employee apply to an action under this section.” 46 U.S.C. §30104(a) (incorporating the Federal Employers’ Liability Act, 45 U.S.C. §§51–60).
The Jones Act thus created a statutory cause of action for negligence, but it did not eliminate pre-existing remedies available to seamen for the separate common-law cause of action based on a seaman’s right to maintenance and cure. Section 30104 bestows upon the injured seaman the right to “elect” to bring a Jones Act claim, thereby indicating a choice of actions for seamen — not an exclusive remedy. See Funk & Wagnalls New Standard Dictionary of the English Language 798 (1913) (defining “elect” as “[t]o make choice of”); 1 Bouvier’s Law Dictionary 979 (8th ed. 1914) (defining “election” as “[c]hoice; selection”). Because the then-accepted remedies for injured seamen arose from general maritime law, see The Osceola, supra, at 175, it necessarily follows that Congress was envisioning the continued availability of those common-law causes of action. See Chandris, Inc. v. Latsis, 515 U.S. 347, 354 (1995) (“Congress enacted the Jones Act in 1920 to remove the bar to suit for negligence articulated in The Osceola, thereby completing the trilogy of heightened legal protections [including maintenance and cure] that seamen receive because of their exposure to the perils of the sea” (internal quotation marks omitted)); Stewart v. Dutra Constr. Co., 543 U.S. 481, 487 (2005) (describing the Jones Act as “remov[ing] this bar to negligence suits by seamen”). If the Jones Act had been the only remaining remedy available to injured seamen, there would have been no election to make.
In addition, the only statutory restrictions expressly addressing general maritime claims for maintenance and cure were enacted long after the passage of the Jones Act. They limit its availability for two discrete classes of people: foreign workers on offshore oil and mineral production facilities, see §503(a)(2), 96 Stat. 1955, codified at 46 U.S.C. §30105(b), and sailing school students and instructors, §204, 96 Stat. 1589, codified at 46 U.S.C. §50504(b). These provisions indicate that “Congress knows how to” restrict the traditional remedy of maintenance and cure “when it wants to.” Omni Capital Int’l, Ltd. v. Rudolf Wolff & Co., 484 U.S. 97, 106 (1987). Thus, nothing in the statutory scheme for maritime recovery restricts the availability of punitive damages for maintenance and cure for those, like respondent, who are not precluded from asserting the general maritime claim.
Further supporting this interpretation of the Jones Act, this Court has consistently recognized that the Act “was remedial, for the benefit and protection of seamen who are peculiarly the wards of admiralty. Its purpose was to enlarge that protection, not to narrow it.” The Arizona v. Anelich, 298 U.S. 110, 123 (1936); see also American Export Lines, Inc. v. Alvez, 446 U.S. 274, 282 (1980) (plurality opinion) (declining to “read the Jones Act as sweeping aside general maritime law remedies”); O’Donnell v. Great Lakes Dredge & Dock Co., 318 U.S. 36, 43 (1943) (“It follows that the Jones Act, in extending a right of recovery to the seaman injured while in the service of his vessel by negligence, has done no more than supplement the remedy of maintenance and cure....”); Pacific S.S. Co. v. Peterson, 278 U.S. 130, 134, 138–139 (1928) (holding that the Jones Act “was not intended to restrict in any way the long-established right of a seaman to maintenance, cure and wages”).
Not only have our decisions repeatedly observed that the Jones Act preserves common-law causes of action such as maintenance and cure, but our case law also supports the view that punitive damages awards, in particular, remain available in maintenance and cure actions after the Act’s passage. In Vaughan v. Atkinson, 369 U.S. 527 (1962), for example, the Court permitted the recovery of attorney’s fees for the “callous” and “willful and persistent” refusal to pay maintenance and cure. Id., at 529–531. In fact, even the Vaughan dissenters, who believed that such fees were generally unavailable, agreed that a seaman “would be entitled to exemplary damages in accord with traditional concepts of the law of damages” where a “shipowner’s refusal to pay maintenance stemmed from a wanton and intentional disregard of the legal rights of the seaman.” Id., at 540 (opinion of Stewart, J.); see also Fiske, 3 F. Cas., at 957 (Story, J.) (arguing that counsel fees are award- able in “[c]ourts of admiralty... not technically as costs, but upon the same principles, as they are often allowed damages in cases of torts, by courts of common law, as a recompense for injuries sustained, as exemplary damages, or as a remuneration for expences incurred, or losses sustained, by the misconduct of the other party”).
Nothing in the text of the Jones Act or this Court’s decisions issued in the wake of its enactment undermines the continued existence of the common-law cause of action providing recovery for the delayed or improper provision of maintenance and cure. Petitioners do not deny the availability of punitive damages in general maritime law, or identify any cases establishing that such damages were historically unavailable for breach of the duty of maintenance and cure. The plain language of the Jones Act, then, does not provide the punitive damages bar that petitioners seek.