Hollingsworth v. Cunard Line Ltd., 58274

• Decision Date: 10 January 1980
• Docket Number: No. 58274,58274
• Court: Georgia Court of Appeals
• Parties: HOLLINGSWORTH et al. v. CUNARD LINE LIMITED.

Page 190

263 S.E.2d 190

152 Ga.App. 509

HOLLINGSWORTH et al. v. CUNARD LINE LIMITED.

No. 58274.

Court of Appeals of Georgia.

Submitted Sept. 10, 1979.

Decided October 30, 1979.

Rehearing Denied Nov. 26, 1979.

Certiorari Denied Jan. 10, 1980.

Robert E. Hall, Atlanta, for appellants.

H. Andrew Owen, Atlanta, for appellee.

QUILLIAN, Presiding Judge.

Plaintiffs below, Mr. and Mrs. Hollingsworth, appeal from the grant of defendant Cunard Line's "Motion to Dismiss," based on the ground that Cunard was not subject to the jurisdiction of the court under the state's Long Arm Statute, Code Ann. § 24-113.1 (Ga.L.1966, p. 343; 1970, pp. 443, 444).

Mr. Hollingsworth became interested in a round-the-world cruise offered by Cunard in 1976 on the Queen Elizabeth II (QE II) after seeing an advertisement in The Atlanta Journal-Constitution of March 14, 1976. He wrote a letter to the address listed in the advertisement and received a sales brochure on the upcoming cruise. Because of business commitments he could not make that trip. But, when another advertisement appeared in the November 7, 1976 edition of The Atlanta Journal-Constitution announcing a 1977 round-the-world cruise on the QE II, he contacted the local travel agency listed in the advertisement the Thomas Cook agency. Mrs. Hollingsworth was an avid duplicate bridge player and Mr. Hollingsworth indulged in the game of poker as an avocation. He frequently participated in games of poker with professionals in Las Vegas, with neighbors, and at local fraternal clubs. The brochure stated a casino was aboard the QE II and the local Cook employee assured him poker was available on the QE II. The Hollingsworths made all their travel arrangements with the Osborne Travel Agency of Atlanta. While at Osborne Mr. Hollingsworth again inquired whether poker was available aboard the QE II and the agent called Cunard in New York and was informed that it was. Cunard had hired the Thomas Cook Travel Agency to handle the nationwide promotion of the 1977 trip, and the shore excursions from the QE II, and had forwarded to Cook as they had to other travel agencies such as Osborne, blank passenger ticket stock.

Cunard stated that it did not directly engage in the promotion of the 1977 world cruise of the QE II. They "advertised the cruise in magazines with a nationwide circulation and also distributed brochures to travel agencies with offices throughout the country . . . None of the travel agencies to which brochures were distributed has a specific agreement or understanding with respect to any promotion or advertising of the Cruise in any state with the exception of Thomas Cook . . ." Cunard denied that they were responsible for the advertisement of the 1976 world cruise. Cunard also denied that any agency agreement existed with any travel agency although they were sent brochures on trips and blank passenger ticket stock. They admitted that "if a travel agency is provided with passage contract ticket stock, the authority to write passage contract tickets is implied." However, "(n)o travel agent can book accommodations in Cunard vessels since all cabin allocations are made centrally in New York . . ." Cunard stated that the Thomas Cook Travel Agency of Atlanta "did not serve as the agent of Cunard for any of the stated purposes." The Osborne Travel Agency in Atlanta completed the Cunard application for tickets and other incidentals such as helping select a cabin and dining room for the Hollingsworths. Cunard, in New York, confirmed the cabin arrangements and forwarded the Hollingsworths' tickets to them in Georgia. Mr. Hollingsworth forwarded a check for $5,000 with the application on November 11 and the balance on December 10 of $8,090. Cunard had established an October 1 deadline after which refunds would not be made.

Mr. Hollingsworth received his tickets on January 12, 1977, in Georgia. Included was a "Cunnard Passage Contract Ticket." Paragraph 23 of the "Contract Ticket" states: "The terms contained in this passage contract constitute the whole of the contract between the Company and the passenger, and no representations or conditions contained in the Company's advertisements, notices, pamphlets, booklets, receipts or other documents issued by any of the servants or agents of the Company shall in any way affect or modify or increase the liability of the company other than as set forth in this contract ticket."

The complaint was brought on two counts. The first count alleged breach of contract and the second count was based on fraud. Both counts alleged that Cunard induced their contract by "misrepresentations" of five specified services, stops, or amenities, that were not available on the trip. Not only was poker not available in the QE II casino but the cruise director actively prevented Mr. Hollingsworth from organizing a poker game among interested passengers. The Hollingsworths departed the cruise in South Africa. Defendant Cunard's motion to dismiss for lack of jurisdiction under the Long Arm Statute was granted. Plaintiffs bring this appeal. Held :

The resident plaintiff brought this action for breach of contract and fraud in the Georgia forum against the nonresident defendant under our Long Arm Statute Code Ann. § 24-113.1 (Ga.L.1966, p. 343; 1970, pp. 443, 444). The Long Arm Statute permits courts of this state to exercise personal jurisdiction "over any non-resident . . . as to a cause of action arising from any of the acts (enumerated): (a) Transacts any business within this State; or . . . (c) Commits a tortious injury in this State caused by an act or omission outside this State if the tort-feasor regularly does or solicits business, or engages in any other persistent course of conduct . . ."

We need only consider whether the defendant transacted any business within the state. "Under our Long Arm Statute jurisdiction over a nonresident exists on the basis of transacting business in this state if the nonresident has purposefully done some act or consummated some transaction in this state, if the cause of action arises from or is connected with such act or transaction, and if the exercise of jurisdiction by the courts of this state does not offend traditional fairness and substantial justice." Davis Metals v. Allen, 230 Ga. 623, 625, 198 S.E.2d 285, 287. "(T)he trend of the opinions is to construe long arm 'transacting any business' statutes most liberally and to uphold the jurisdiction of the court of the plaintiff's residence in actions arising, either directly or indirectly, out of such transactions." Id. at 626, 198 S.E.2d at 287-288. Accord, McGee v. International Life Ins. Co., 355 U.S. 220, 222, 78 S.Ct. 199, 200, 2 L.Ed.2d 223; Annot. 27 A.L.R.3d 397. In accordance with this trend, our Supreme Court has adopted the "Illinois Rule" which is predicated "on the premise that the Long Arm Statute contemplates that jurisdiction shall be exercised over non-resident parties to the maximum extent permitted by procedural due process." Coe & Payne Co. v. Wood-Mosaic Corp., 230 Ga. 58, 60, 195 S.E.2d 399, 401.

The U. S. Supreme Court's latest examination of this issue was in Kulko v. California Superior Ct., 436 U.S. 84, 91, 98 S.Ct. 1690, 1696-1697, 56 L.Ed.2d 132 (1978), where they held:

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