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Wiedemann v. Cunard Line Limited

OPINION FILED AUGUST 21, 1978.

JOSEPH R. WIEDEMANN, PLAINTIFF-APPELLANT,

v.

CUNARD LINE LIMITED ET AL., DEFENDANTS-APPELLEES.



APPEAL from the Circuit Court of Cook County; the Hon. DANIEL P. COMAN, Judge, presiding.

MR. JUSTICE O'CONNOR DELIVERED THE OPINION OF THE COURT:

Plaintiff, Joseph R. Wiedemann, appeals from the order of the circuit court of Cook County which granted the motion of defendant, Cunard Line Limited (Cunard), to quash the service of summons and dismiss the complaint against it. Plaintiff contends that defendant is subject to in personam jurisdiction of the Illinois courts> because it has employees and agents in Illinois, advertises in Illinois and contracted with plaintiff in Illinois.

Plaintiff's complaint seeks damages for personal injuries he suffered while using the ocean beach at the Hotel LaToc, located on the island of St. Lucia, West Indies. Count I of the complaint alleges that Cunard "owned, operated, managed, maintained and controlled" the hotel and its premises and that Cunard was doing business in Cook County, Illinois, "by and through its agents, employees, brochures, and advertisements." It was further alleged that a co-defendant, GWV Travel Inc. (GWV), was a corporation in the business of booking and operating tours as an agent and servant of Cunard and which contracted with plaintiff in the City of Chicago for such a tour. Plaintiff alleged he was induced by brochures and advertisements of the defendants to contract, and did contract, with the defendants for the tour which included the beach and ocean facilities of the Hotel LaToc. Plaintiff alleged that the defendants had the duty to use reasonable care for the safety of the plaintiff as a hotel guest and the duty to warn the plaintiff of the unreasonably dangerous condition of the beach. It was alleged that the defendants breached these duties by negligent failure to warn plaintiff of the dangerous beach, negligent advertisement that plaintiff would have the use of a safe beach, negligent failure to provide a lifeguard, and negligent failure to erect and maintain a structure to prevent plaintiff from using the dangerous beach. It was alleged that plaintiff's injuries were proximately caused by one or all of the above acts or omissions of the defendants.

Count II of the complaint alleged that defendants represented that the beach and ocean facilities were safe for wading and swimming, and that plaintiff contracted with defendants on the basis of the representation, but that the representations were false and misleading and the beach was not fit for the purpose advertised. It was alleged that plaintiff's injuries were proximately caused by the breach of contract by defendants.

Service of process was made upon defendant Cunard in New York, New York. Cunard filed a special appearance and moved to quash service of summons, objecting to the court's jurisdiction over the person of Cunard. Defendant GWV was served in Needham, Massachusetts, and also filed a special appearance and moved to quash on the ground of lack of personal jurisdiction of the Illinois courts>.

Each defendant filed an affidavit in support of its motion to quash. Cunard's affidavit, sworn to by a vice president of the company, states that Cunard is a corporation organized under the laws of Great Britain and maintains an office in New York. Further, Cunard has never been authorized to transact business in Illinois, it has not consented to be sued in Illinois, it owns no property in Illinois, and maintains no office in Illinois. None of Cunard's employees or agents sells any passenger tickets or tickets for any tour or vacation tour in Illinois. The affidavit states that Cunard is in the oceanic shipping business and owns the "Cunard Adventurer," which was the ship on which plaintiff had been given passage as part of the vacation package arranged by GWV. GWV arranged and operated the tour, including the making of all air, ship and hotel reservations; all reservations were made outside of the State of Illinois. Plaintiff purchased his tour ticket from Travel-Wide, an independent travel bureau in Northbrook, Illinois. Cunard's affidavit further stated that Cunard had no contractual relationship with plaintiff; GWV reserved a number of spaces on the "Cunard Adventurer" and paid Cunard directly, and their transaction had no connection with the State of Illinois. Cunard had no contractual or other relationship to plaintiff concerning the Hotel LaToc. Cunard stated that no ownership or agency interest existed between itself and any of the other defendants, including Hotel LaToc, nor did Cunard have the right or power to control or direct any of their activities. Cunard denied that it, or its agents or employees, had made contact with plaintiff in Illinois to solicit the sale or to sell the tour package plaintiff purchased from Travel-Wide. Cunard denied any responsibility for the condition of the beach at Hotel LaToc, and denied ever making any representation to plaintiff, in Illinois or elsewhere, that the beach was safe for wading or swimming. Cunard denied committing any tortious act in Illinois or elsewhere which would subject it to the jurisdiction of the Illinois courts>, and denied that it had transacted any business in Illinois which would subject it to the jurisdiction of the Illinois courts> in this case. Finally, Cunard states that, both at the time it contracted with GWV and at the time plaintiff purchased his ticket, Cunard did not and could not foresee that it would be required to defend a suit such as this in Illinois.

GWV's affidavit, sworn to by its vice president-treasurer, states that it is a Delaware corporation, with its offices and principal place of business in Massachusetts. It owns no property and maintains no office in Illinois. None of its officers, employees or agents lives, works, solicits or transacts business in Illinois. GWV is not authorized to transact business in Illinois and it has not consented to be sued in Illinois. The affidavit states that GWV is in the business of organizing and operating vacation tours, which frequently include air and ship travel, as well as hotel accommodations.

With reference to the tour taken by plaintiff, GWV, after conceiving and planning the itinerary, reserved blocks of airline, steamship and hotel accommodations as an independent contractor. Tickets for the tour were sold by Travel-Wide, an independent travel bureau in Northbrook, Illinois, which retained 10% of plaintiff's payment as its commission, then issued its own check to GWV in payment of the tour charge. Plaintiff's purchased tour included a flight on Overseas National Airways from Chicago to San Juan, Puerto Rico; a cruise on the "Cunard Adventurer," a ship owned and operated by defendant Cunard; one week's accommodation at Hotel LaToc, St. Lucia, W.I.; ship transportation back to San Juan; and air transportation back to Chicago.

GWV's affidavit stated further that the only involvement of Cunard was to provide ship accommodation and transport, and the voyage of the "Cunard Adventurer" had no contact with the State of Illinois. GWV denied having made contact with or having communicated with plaintiff in Illinois or soliciting in Illinois the sale of the vacation package purchased by plaintiff. GWV has no ownership or agency interest or relationship with Travel-Wide, Hotel LaToc, or any other defendant, nor does GWV have the power or authority to control or direct their activities. Conversely, GWV is not controlled or directed by any of the other defendants. GWV denied that it had any responsibility for the beach at the Hotel LaToc or the management of the hotel, and further denied that it had ever represented to plaintiff that the beach was safe for wading and swimming. GWV again denied that it was an agent of the Hotel LaToc, and stated that its only relationship with the hotel was in booking a block of accommodations, which act or acts took place outside the State of Illinois. Finally, GWV stated that at the time it developed the "Cunard Adventurer" tour package, and at the time plaintiff purchased his ticket from Travel-Wide, GWV did not and could not foresee that it would be compelled to defend a lawsuit such as this in Illinois.

In response, plaintiff filed his own affidavit and several exhibits. His affidavit states that prior to December 1975 he had seen numerous advertisements for "Cunard Fly/Cruise" package tours in the Chicago Tribune and in national periodicals. In July and December 1975, plaintiff personally met with a representative of Travel-Wide in Northbrook, Illinois, and at that time plaintiff "understood" that Travel-Wide was an authorized agent for Cunard with authority to book tours for Cunard. Plaintiff was shown a Cunard display at Travel-Wide's office and was given brochures advertising the Cunard tours, including the "Cunard Adventurer Fly/Cruise" and a brochure describing Cunard's resort hotel, LaToc, including the beach facilities. Plaintiff paid for the complete tour, which included air fare, cruise accommodations and the hotel, and was issued a ticket from Cunard, dated and stamped by "Agent, Travel-Wide." Plaintiff understood that the air carrier had been chartered by Cunard. The affidavit also stated that all of the brochures and advertisements in the hotel lobby and in plaintiff's room referred to the hotel as "Cunard's Hotel LaToc" and that "Cunard's hotel manager and other employees continually represented to affiant and his wife that the beach was safe for wading and swimming." Finally, plaintiff stated that after his return to Chicago, he received in the mail at his home a letter and questionnaire from the hotel manager and a "newsletter" from Cunard advertising its 1976 cruises and tours.

Exhibit 1, attached to the affidavit of plaintiff, appears to be a copy of a page from the Chicago yellow pages telephone directory, which contains a listing for "Cunard Adventurer & Q E II Cruises — Agents, Great Lakes Transit Company, Inc." Exhibit 2 appears to be a copy of an advertisement from the travel section of the Chicago Tribune for Sunday, November 14, 1976, for the "Cunard Countess" cruise ship. The coupon included in the advertisement has the address, "Cunard/GWV Travel, Inc., 115 Allen Boulevard, Farmingdale, N.Y." printed on it. The copy makes reference to "Cunard's lovely Hotel LaToc." Exhibit 3 appears to be a copy of the November 1976 "Cunard World, A Private Newsletter for Cunard Past Passengers." It appears to be addressed to plaintiff at his home and purports to have been sent by "Cunard, 555 Fifth Avenue, New York, N.Y." An article refers to "Cunard's luxurious LaToc resort on unspoiled St. Lucia," and describes the accommodations there. Exhibit 4 appears to be a map, labelled "LaToc Development." Printed as part of the descriptive copy is the statement that LaToc "has one of the best beaches in St. Lucia." Also stated in the copy is the following:

"The Development has been carried out and is managed by LaToc Holdings Limited, a subsidiary of Trafalgar House Investments Limited, a large U.K. public company involved in property, construction, hotels — both resort and commercial — and shipping through its subsidiary the Cunard Steam-Ship Company."

Exhibit 5 appears to be a photocopy of the "Cunard Passage contract ticket," the last page of which has printed on it a form with blanks to be filled in with the name of the passenger, destination, fare and so on. On the copy in the record, the filled-in information is unreadable. Exhibit 6 appears to be a copy of a brochure entitled "Cunard's Caribbean," which contains two references to "Cunard's Hotel LaToc." The final page is entitled "General Information and Conditions," and under the heading "Responsibility" is the statement:

"Cunard Line Ltd. and/or their agents or representatives act only as agents for passengers with respect to the air, land transportation and hotels and as such hold themselves free of liability for any ...


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