SELLING TRAVEL SERVICES OVER THE INTERNET AND ITS IMPACT UPON JURISDICTION : UPDATED
September 1, 2000
Revision Number 1
By Judge Thomas A. Dickerson[1]
Consumer use of the Internet to plan travel and make reservations
has risen dramatically in recent years.
" According to the Travel Industry Association of America, 52 million people used the Internet in 1999 to plan travel, a 54% percent increase from 1998. Sixteen and half million used the Internet in 1999 to make reservations, a 146 percent increase...According to Internet research company PhoCusWright, US consumers spent over $7 billion in 1999 on travel bought on the Internet, up from $2.6 billion in 1998. Internet bookings represented 5.4 percent of all airline bookings in 1999, up from 1.9 percent in 1998 "[2].While consumers remain cautious about the reliability of information[3], the prospect of hidden fees[4] and insecure credit card transactions[5], travel shopping on the Web is increasing[6], particularly, as suppliers such as hotels[7] and air carriers[8] offer exclusive fares on their own Web sites with 24 hour accessability[9] and retailers continue to develop creative ways[10] to sell travel services, e.g., Priceline[11].
At the same time the Internet threatens to destabilize the existing retail distribution system by replacing travel agents[12]. Unlimited and unlicensed[13] access to the Internet threatens consumers by exposing them to complex travel scams[14] and boiler room operators[15]. And, lastly, the marketing of travel services on the Internet may expose foreign suppliers and tour operators to greater risk of being hailed before U.S. Courts to answer lawsuits brought by aggrieved travelers.
Personal Jurisdiction
In adjudicating an injured traveler's claim against a foreign supplier or tour operator the Court must have jurisdiction over the subject matter[16] as well as personal jurisdiction over the parties. Traditionally, personal jurisdiction has depended upon physical presence in the forum. For example, if a foreign hotel[17] or air carrier[18] conducted business through an agent[19], a wholly owned subsidiary[20], a parent corporation[21] or joint venturer[22] or maintained an office with a staff, a bank account and a local telephone number then jurisdiction would, generally, be appropriate. The rationale being that in return for the privilege of doing business in the forum a foreign travel supplier or tour operator should be available to answer claims brought by injured travelers.In the absence of physical presence, however, the assertion of personal jurisdiction is more problematical. For example, instead of maintaining an office in the forum a foreign travel supplier may conduct business through an agent[23], independent contractor[24], travel agent[25] or tour operator[26]. Under these circumstances personal jurisdiction has been found if there was active solicitation of business plus contract formation in the forum. This concept, known as the " solicitation-plus" doctrine, is still followed with some exceptions[27] by most U.S. Courts[28] .
Long Arm Jurisdiction
Most States have enacted statutes providing for personal jurisdiction based upon certain minimal contacts[29]. For example, New York's long arm statute[30] provides for personal jurisdiction over a non-resident if " in person or through an agent " he " transacts any business within the state " or " commits a tortious act within the state " as long as the particular cause of action asserted is one " arising from " any of such acts.A modern jurisdictional analysis should consider the extent to which a defendant purposefully avails itself of the privilege of conducting business in the forum, that the claim must arise out defendant's forum related activities and the exercise of jurisdiction must be reasonable[31]. What is reasonable may depend upon (1) the extent of purposeful interjection, (2) the burden on defendant to defend in the chosen forum, (3) the extent of the conflict with the sovereignty of the defendant's state, (4) the forum state's interest in the dispute, (5) the most efficient forum for judicial resolution of the dispute, (6) the importance of the chosen forum to the plaintiff's interest in convenient and effective relief, and (7) the existence of an alternate forum[32].
Jurisdiction And The Internet
The extent to which an Internet web site confers personal jurisdiction in a forum in which the web site is accessible to the general public and/or to customers has recently been addressed by several Courts. Initially, it should be noted that using a Web site to make travel reservations is not analogous to using an 800 number to make reservations[33]. These two instrumentalities are qualitatively different in their impact upon the assertion of personal jurisdiction over foreign travel suppliers.The Zippo Dot Com Analysis
A useful jurisdictional analysis appears in Zippo Manufacturing Co. v. Zippo Dot Com, Inc.,[34] a trademark infringement action brought by the manufacturer of " Zippo " lighters against a computer news service using the Internet domain name of " zippo.com ". In Zippo, the defendant was a Californiabased news service with an interactive web site" through which it exchanges information with Pennsylvania residents in hopes of using that information for commercial gain later ".The defendant had entered into news service contracts[35] with 3,000 Pennsylvania residents and 7 " contracts with Internet access providers to furnish services to their customers in Pennsylvania ". Since it was defendant's " conscious choice to conduct business ( in Pennsylvania )" the Court asserted personal jurisdiction based upon the following analysis.
" At one end of the spectrum are situations where a defendant clearly does business over the Internet. If the defendant enters into contracts with residents of a foreign jurisdiction that involve the knowing and repeated transmission of computer files over the Internet, personal jurisdiction is proper...At the opposite end are situations where a defendant has simply posted information on an Internet Web site which is accessible to users in foreign jurisdictions. A passive web site that does little more than make information available to those who are interested in it is not grounds for the exercise (of) personal jurisdiction ...The middle ground is occupied by interactive Web sites where a user can exchange information with the host computer. In these cases, the exercise of jurisdiction is determined by examining the level of interactivity and commercial nature of the exchange of information that occurs on the Web site."
Passive Web Sites
If a foreign travel supplier or tour operator maintains an informational web site accessible to the general public but which can not be used for making reservations then most[36], but not all[37], Courts would find it unreasonable to assert personal jurisdiction. For example, in Weber v. Jolly Hotels[38] a New Jersey resident purchased a tour packaged by a Massachusetts travel agent, not an exclusive selling agent[39], which featured accommodations at a Sicilian hotel owned by an Italian corporation, Itajolly Compagnia Italiana Dei Jolly Hotels [ " Jolly Hotels " ]. Jolly Hotels conducted no business in New Jersey but had a subsidiary which owned a hotel in New York City which could make reservations at all of its hotels. The plaintiff sustained injuries at defendant's Sicilian hotel and brought suit against Jolly Hotels in New Jersey. Jolly Hotels maintained a Web site accessible in New Jersey which provided "`photographs of hotel rooms, descriptions of hotel facilities, information about numbers of rooms and telephone numbers `". The Web site could not be used to make reservations at any of Jolly Hotels. Finding the Web site to be passive in nature the Court dismissed the complaint for a lack of personal jurisdiction but transferred the case to New York because defendant's subsidiary's New York City hotel could make reservations at all Jolly Hotels.Passive Web Sites Plus
However, passive Web sites combined with other business activity, e.g., providing trainees to a company doing business in the forum[40], entering into a licensing agreement with a company in the forum and selling to three companies in the forum[41], entering into a contract with a company in the forum which contained a forum selection clause and multiple e-mail communications to the forum[42], e-mail, fax and telephone communications[43], contracts and various correspondence surrounding those contracts[44], various support services incident to sales[45], e-mail, fax, telephone and regular mail communications[46] and 12 sales in the forum and plans to sell more[47], mortgage loan applications printed out and chats online with mortgage representatives[48], fielding e-mail questions about products and sending information about orders[49]," the web site contains several interactive pages which allow customers to take and score performance tests, download product demos, and order products online ( and ) provides a registration form whereby customers may obtain product brochures, test demonstration diskettes or answers to questions "[50],may provide a reasonable basis for the assertion of personal jurisdiction over foreign travel suppliers.
Interactive Web Sites
If the web site provides information, e-mail communication, describes the goods or services offered, downloads a printed order form or allows on-line sales with the use of a credit card and sales are, in fact, made in this manner in the forum then most Courts[51] but not all[52] would find the assertion of personal jurisdiction reasonable.
Interactive Web Sites And Forum Selection Clauses
An interesting twist to this analysis is when a forum selection clause[53] is contained in a reservation form. For example, in Decker v. Circus Circus Hotel[54], New Jersey consumers made reservations at a Nevada hotel using an interactive web site. The reservation form which appeared on the computer screen contained a forum selection clause informing guests that should they wish to commence a lawsuit against the hotel it could only be brought in Nevada. In the Decker case the Court decided to enforce the Nevada forum selection clause. The Court also found that the combination of an interactive web site with a forum selection clause negates any intent of being haled into a local courtroom.Forum Selection Clauses Are Gaining Popularity
Forum selection clauses, typically, appear in travel or passenger contracts used byA] Cruiselines [ Carnival Cruise Lines, Inc. v. Shutte[55]
( Florida forum selection clause enforced ); Effron v. Sun Line Cruises, Inc.[56] ( Greek forum selection clause enforced ); Schaff v. Sun Line Cruises, Inc.[57] ( Greek forum selection clause not enforced ); Hodes v. SNC Achille Lauro[58] ( Naples forum selection clause enforced ); O.C. Harden v. American Airlines[59] ( Hawaii forum selection clause enforced ); Jewel Seafoods, Ltd. v. M/V Peace River[60] ( Chinese forum selection clause enforced ); Carron v. Holland America Line-Westours, Inc.[61] ( Washington forum selection clause enforced ); Rawlins v. Clipper Cruise Lines[62] ( Missouri forum selection clause enforced ); Hollmann v. Cunard Line Limited[63] ( London forum selection clause enforced )];
B] Hotels [ Doe v. Sun International Hotels, Ltd.[64] ( female guest raped at hotel; Bahamas forum selection clause in guest registration form signed by minor guest's step father not enforced; void by reason of guest reaching age of majority )]; and
C] Tour Operators [ Rodriquez v. Class Travel Worldwide[65]
( minor tourist injured after being pushed into hotel pool; Californiaforum selection clause in tour operator's registration form enforced ); Paster v. Putney Student Travel, Inc.[66] ( tourist contracted oral yeast infection on the Blackfeet Indian Reservation in Montana during a " sweat ceremony ", one portion of which included the passing of a tobacco filed pipe; Vermont forum selection clause in tour participant contract enforced )].
Forum selection clauses are used as a means of discouraging consumer litigation by requiring that lawsuits to be brought in a forum far distant from the consumer's home. This usually increases the costs of litigation thus chilling the injured traveler's enthusiasm to pursue his or her claim.
Travelers Must Receive Adequate Notice
The traveler should have an opportunity to read the forum selection clause. In determining whether a passenger had notice of a forum selection clause the courts will examine the type size and the positioning of the lettering of the clause [ [ Walker v. Carnival Cruise Lines[67] ( Florida forum selection clause in cruise ticket enforced; notice adequate; " It is well settled that passengers need not have actually read a ticket to be bound by the terms contained therein...The issue is simply whether passengers had an opportunity to read their tickets " ); O.C. Harden v. American Airlines[68] ( " passengers are bound by provisions printed on a ticket, even though the passenger did not actually read those provisions " ); Carron v. Holland America Line-Westours, Inc.[69] ( notice adequate );; Doe v. Sun International Hotels, Ltd.[70] ( notice inadequate ); Gomez v. Royal Caribbean Cruise Lines[71] ( notice adequate ); Smith v. Doe[72] ( notice adequate )]. In addition, adequate notice presupposes that the passenger has received the ticket sometime before the cruise so it may be read [ Stobaugh v. Norwegian Cruise Line Limited[73] ( notice inadequate; passengers paid in full for cruise and were then notified of forum selection clause in ticket;
" the way in which NCL imposed the forum selection clause upon the passengers after they paid for the cruise in full offends our notion of fair play and does not pass the test of fundamental fairness " )].
Forum Selection Clauses Must Be Reasonable
The U.S. Supreme Court has held that negation of a forum selection clause requires evidence of bad faith." It bears emphasis that forum-selection clauses contained in form passage contracts are subject to judicial scrutiny for fundamental fairness "[74]There must be some evidence that the forum was selected as a means of " discouraging cruise passengers from pursuing legitimate claims ". U.S. forums such as Florida or Washington are, generally, considered reasonable [ Kaufman v. Ocean Spirit Shipping Ltd.[75] ( forum selection clause transferring case from Michigan to Louisiana fair )] and are not " remote alien forums "[76]. However, distant foreign forums are more suspect [ Bhatnagar v. Surrendra Overseas Ltd.[77] ( forum selection clause limiting litigation to India unenforceable as unjust and unreasonable ); Schaff v. Sun Line Cruises, Inc.[78] ( Greek forum selection clause not enforced )].
The Internet Has Expanded Jurisdiction
The Internet has changed the way in which the Courts decide what types of business contacts justify the assertion of personal jurisdiction. To establish personal jurisdiction over foreign travel suppliers and tour operators under the traditional solicitation-plus doctrine it was necessary to find both solicitation of business and the entering into of reservations' contracts in the forum. Because foreign travel suppliers or their reservations' services entered into contracts at distant locations, the Courts, invariably, found local solicitation of business through travel agents but no contract formation in the forum. This meant that injured travelers were denied a local forum in which to bring a lawsuit against a foreign travel supplier.The Internet may have changed all that. The Courts that have addressed the issue seem to agree that when an interactive web site is used to take orders and make reservations that contract formation takes place in the consumer's forum and not at the location of foreign travel supplier's home computer. Although the Courts have applied the solicitation-plus doctrine to Internet marketing they have done so in a manner which has dramatically increased the reach of personal jurisdiction over foreign travel suppliers and tour operators.
FOOTNOTES
[1] . Thomas A. Dickerson is a Westchester County Court Judge with a Web Page at http://members.aol.com/judgetad/index.html. Judge Dickerson is the author of Travel Law, Law Journal Press, New York, 1981-2000, updated biannually, Web Page at http://members.aol.com/travellaw/index.html , Class Actions: The Law of 50 States, Law Journal Press, New York, 1988-2000, updated annually, Web Page at http://members.aol.com/class50/index.html, and over 170 articles on consumer law issues, many of which are available at http://courts.state.ny.us/tandv.html.
[2] Nankin, Travel Distribution Update, Spring 2000, p. 1.[3] See Marschak, "Consumer press reports distrust of Web travel sites", Travel Weekly, November 11, 1999, p. 29
( " Consumers are not necessarily seeing a meaningful range of products or getting the tools they need for making meaningful price comparisons... Paul Grimes...complained that many sites, including travel agency consortium sites, promote only certain tour and cruise
companies " );
Tedeschi," Practical Traveler, Web Air Deals: Caveat Surfer," N.Y. Times Travel Section, April 16, 2000, p. 4.
[4] See Hidden Fees Take Bite Out of Online Savings, Consumer Reports Travel Letter, February 2000, p. 1
( " Found a cheap ticket online? Beware of hidden fees that could take a bite out of those savings. Service fees for processing bookings, delivering tickets and making changes are driving up the cost of booking airline tickets online...that fees can add as much as 85 percent to the advertised price. And they're hard to avoid because online discounters don't always disclose--or plainly display--these charges on their web sites " ).[5] See Grant,"Are Web Bookings Safe? Airlines Say Yes, But Some Take Extra Precautions", Travel Agent, January 17, 2000, p. 88
( " Last month Northwest discovered a programming error that left unprotected the credit card numbers and personal information of some frequent flyers. " );Tedeschi," Tighter Security For Web Buyers, Practical Traveler," N.Y. Times Sunday Edition, Travel Section, December 26, 1999, p. 4
( " This year...a technical administrator for an Internet service provider in Seattle discovered that hundreds of Web sites had left their customers' credit card information completely exposed to anyone with an Internet connection " );Bryant, "Cautiously, Travelers Shop on the Internet", New York Times Sunday Edition, Travel Section, December 20, 1998, at p. 3
( " A recent survey...found that among 500 people who have traveled by air in the past year and visited a Web site in the past month, 80 percent have looked at Internet travel sites and 58 percent have checked fares. But only 18 percent have used the Internet to book travel online...The main reason for their reluctance? Credit card security. " ).
[6] See Bryant, "Web Travel Shopping: The Surf Is Rising", New York Times Sunday Edition, Travel Section, May 3, 1998, p. 3 ( " A recent survey...estimated that by 2002, on-line bookings of air fares, hotel rooms, rental cars and vacation packages will jump more than tenfold, to $8.9 billion..." ).
[7] See "More Web Worries? Four Hotel Chains Plan A Common Site", Travel Agent, March 27, 2000, p. 6; Johnston, Practical Traveler, Rooms Through The Web, New York Times Sunday Edition, Travel Section, p. 4 ( " But shopping for lodgings on the Web is clearly the wave of the future. " ).
[8] See "Airlines Throw Their Weight Behind New Web Site," Travel Agent , January 17, 2000, p. 6( " Twenty-three airlines have answered the question posed by Continental, Delta, Northwest and United last November--will enough major players joined a planned Web site to make it viable? With the addition...of large and small U.S. and foreign carriers...the new Web site...has the backing it needs to potentially become the industry's 400-pound gorilla. " );"Big Airlines Ready To Deal", Consumer Reports Travel Letter, December 1999, p. 13
( " More choices on the web mean better deals for consumers, right? That's the pitch behind a new travel ` supersite ` to be launched by Continental, Delta, Northwest and United " ).
[9] See "Round-The-Clock Access Rates As A Major Attraction Of Net, Survey explores Internet users' attitudes, motives", Travel Weekly, August 3, 2000, p. 4.
[10] See Polling, "Latest Web twist: Lose the booking, keep the cash", Travel Weekly, June 5, 2000, p. 1( "...an alternative pricing mechanism for moving travel...on the Web, enabling merchants to make a deal with a consumer, but with the option to call it off if it looks as if the ( travel services ) can be sold elsewhere at a better price. For taking the risk that the supplier might pull out of the deal, the consumer gets a guaranteed low price with a cash rebate up front. " ).[11] "How Low Can You Go? Priceline Adds Hotel Bids", Consumer Reports Travel Letter, December 1998, p. 1
( " Priceline.com. The Internet bidding system that claims it lets travelers name their own prices for airline tickets, quietly launched a similar service for hotel rooms in 26 cities " );"Priceline: Moving 20,000 air tickets, 5000 hotel rooms weekly", Travel Weekly, May 3, 1999, p. 8; Milligan," Priceline.com to add cruises, tours to lineup", Travel Weekly, May 11, 2000, p. 1; Wilkening, "The ins and outs of Priceline.com: Good fares come with drawbacks", Travel Weekly, June 24, 1999, p. 1
( " But if you think the price is right, don't overlook the minuses--including uncertain hours of travel, nonstandard purchase conditions and some potential hidden costs " ).[12] See Nankin, Travel Distribution Update , Fall 1999, p. 2
( " It is no secret that the prospect of increased direct Internet sales by airlines is driving the shift away from ( travel ) agents as a form of distribution. According to some estimates, an online sale cuts an airline's distribution ( agent commission or telephone sales ) costs by 75 percent " );"Will The Internet Replace Your Travel Agent?", Conde Nast Traveler, August 1997, p. 19
( "` The Web can be a very good tool for travelers looking for last-minute specials. But for other types of travel, we still find that travel agents are best. They don't guarantee the best price, but they do increase your chances of finding it `" );" ASTA consumer survey: Agents more credible than the Net", Travel Weekly, January 7, 1999, p. 12
( " Agents were favored over Internet-based travel information sources by 68% of air travelers and 81% of cruise"Poll: Most Web browsers still turning to agents", Travel Weekly, August 12, 1999, p. 23
vacationers " );
( " The poll said 56% of on-line travelers reported booking with an agent after visiting a travel site " ).[13] See Dickerson,"The Licensing And Regulation Of Travel Sellers In The United States", The Aviation Quarterly [ 1998 ] TAQ 47-69, January 1998
( " Travel Sellers are, to a large extent, unregulated in the United States. As at 1997 only a handful of States...had some form of Travel Seller regulation. Many of today's Travel Seller statutes are cosmetic only...(and) fail to have most of the basic components of a comprehensive licensing statute, i.e., annual registration, proficiency testing, advertising standards and contractual disclosure rules, surety bonding, escrow accounts, errors and omissions insurance, consumer restitution funds and civil and criminal penalties. "See also Dickerson,"The Licensing And Regulation Of Travel Agents, Tour Operators And Other Travel Sellers In The United States, Canada, Australia, Great Britain, Japan And The Members Of The European Community", March 15, 2000, http://www.courts.state.ny.us/tandv/Aqtaed1.htm.
[14] See "Vacations from Hell", Consumer Reports, January 1999, p. 29
( " Because travel mixes fantasy and fun--and because the industry is largely unregulated--it's an area ripe for rip- offs...According to FTC records, Design Travel operated 41 telemarketing boiler rooms...What buyers typically got was a few nights in Florida, a ` cruise ` to the Bahamas on a converted auto ferry and a brief stay there at a seedy hotel. It was hardly the vacation ` retailed at over $1,500 ` that smooth-talking telemarketers described " );See also Edelson,"ASTA Travel Scam Conference: Beware Of Fraud on the Web", Travel Agent, May 18, 1998, p. 119 ( " As it becomes more mainstream, the Internet has opened up a whole new medium for scam artists... " ). [15] See Dickerson, "The Licensing And Regulation Of Travel Services In The United States", The Aviation Quarterly [ 1998 ] TAQ 47-69, January 1998
( " consumers need to be protected from increasingly complex, misleading and deceptive travel scams. Recently, the Federal Trade Commission (FTC) and the Attorneys General of ( 12 States ) took legal action against a variety of travel scam operators. ` Travel has long been a fertile field for flimflam, but what had been a cottage industry has lately mushroomed into a growth industry...the cost of travel-related fraud ( is estimated ) at more than $12 billion a year...Travel fraud comes in many more packages than it used to" ).
[16] See Dickerson, Travel Law , supra, at Section 2.02[1]. The Airline Deregulation Act has been held by some Courts to preempt passenger claims which " relate to rates, routes or service of any air carrier ". Under preemption doctrine the Court is deprived of jurisdiction and required to dismiss the lawsuit. See Charas v. Trans World Airlines, Inc., 1998 WL 822116 ( 9th Cir. 1998 )( Airline Deregulation Act does not preempt passenger's run of the mill personal injury claims ).
[17]
See
Second Circuit: Darby v. Compagnie National Air France,
735 F. Supp. 555 ( S.D.N.Y. 1990 )( Brazilian hotel where guest
drowned subject to New York jurisdiction because of actions of
subsidiary in the forum ).
State Courts:
New York: Frummer v. Hilton Hotels International,
Inc., 19 N.Y. 2d 933, 281 N.Y.S. 2d 41, 227 N.E. 2d 851
( 1967 )( subsidiary reservations service in the forum ).
[18] See Bryant v. Finnish National Airline, 15 N.Y. 2d 426, 260 N.Y.S. 2d 625, 208 N.E. 2d 439 ( 1965 ).
[19] See Catalano v. BRI, Inc., 724 F. Supp. 1580 ( E.D. Mich. 1989 )( Michigan has personal jurisdiction over Las Vegas hotel based upon conducting business through an agent with offices in Michigan ).
[20] See Taca Intl. Airlines v. Rolls-Royce of England, 15 N.Y. 2d 97, 256 N.Y.S. 2d 129, 204 N.E. 2d 329 ( 1965 ).
[21] See Weintraub v. Walt Disney World Co., 825 F. Supp. 717 ( E.D. Pa. 1993 )( Pennsylvania has jurisdiction over Florida resort Walt Disney World based upon connections of parent corporation Walt Disney Company to Pennsylvania ).
[22] See Rait v. Jacobs Brothers, 49 Misc. 2d 903, 268 N.Y.S. 2d 750 ( 1966 ).
[23]
See
Kentucky: Mohler v. Dorado Wings, Inc., 675
S.W. 2d 404
( Ky. Ct. App. 1984 ).
New York: Berner v. United Airlines, Inc.,
3 N.Y. 2d 1003, 170 N.Y.S. 2d 340, 147 N.E. 2d 732 ( 1957 );
[24]
See
Second Circuit: Gelfand v. Tanner Motor Tours, Ltd.,
385 F. 2d 116 ( 2d Cir. 1967 ).
State Courts:
New York: Guile v. Sea Island Co., Inc.,
11 Misc. 2d 496, 66 N.Y.S. 2d 467 ( 1946 ), aff'd
272 App. Div. 881, 71 N.Y.S. 2d 911 ( 1947 ).
[25]
See
Third Circuit: Romero v. Argentinas, 1993
WL 416547 ( D.N.J.
1993 ).
Tenth Circuit: Afflerbach v. Cunard Line. Ltd.,
11 F. Supp. 2d 1260 ( D. Wyo. 1998 ).
State Courts:
New York: Savoleo v. Couples Hotel, 136 A.D.
2d 692, 524 N.Y.S. 2d 52 ( 1988 ).
[26]
See
Sixth Circuit: Hughes v. Cabanas del Caribe Hotel,
744 F. Supp. 788 ( E.D. Mich. 1990 ).
Seventh Circuit: Wilson v. Humphreys, 916
F. 2d 1239 ( 7th Cir. 1990 ).
[27]
See
First Circuit: Szafarowicz v. Gotterup, 1999
WL 782028
( D. Mass. 1999 )( Massachusetts may have jurisdiction over Cayman
Island diving company if a significant amount of business was
done in the U.S. ); Nowak v. Tak How Inc. Ltd.,
1995 WL 521874 ( D. Mass. 1995 ).
Second Circuit: Mallon v. Walt Disney World Co.,
42 F. Supp. 2d 143 ( D. Conn. 1998 )( continuous and extensive
advertising in the forum, without contract formation, is sufficient
to establish jurisdiction over foreign resort ); Begley
v. Maho Bay Camps, 1994 WL 136016 ( E.D.N.Y. 1994 )( jurisdiction
based upon newspaper ads and contact in New York City ).
Third Circuit: Weintraub v. Walt Disney World Co.,
1993 WL 244064 ( E.D. Pa. 1993 )( advertising, staffing and customer
relations activities sufficient to support jurisdiction ).
Fifth Circuit: Kervin v. Red River Ski Area, Inc.,
711 F. Supp. 1383 ( E.D. Tex. 1989 )( solicitation of business
sufficient for jurisdiction ).
Sixth Circuit: Raftery v. Blake's Wilderness Outpost
Camps, 1997 WL 14795 ( E.D. Mich. 1997) ( advertising
sufficient for jurisdiction ).
Seventh Circuit: Wilson v. Humphreys, 916
F. 2d 1239 ( 7th Cir. 1990 )( advertising and contacts with local
tour operators sufficient for jurisdiction ).
State Courts:
Connecticut: Stewart v. Air Jamaica Holdings Ltd.,
2000 U.S. Conn. Super. 1107 ( Conn. Super. 2000 )( plaintiff fails
to prove solicitation of business in Connecticut ).
[28]
See
First Circuit: Rosich v. Circus & Circus Enterprises,
Inc., 3 F. Supp. 2d 148 ( D.P.R. 1998 )( advertising through
travel guide and brochures insufficient contact ); Clark
v. City of St. Augustine, Florida, 977 F. Supp. 541 (
D. Mass. 1997 )
( advertising in forum insufficient contact ).
Second Cicuit: Andrei v. DHC Hotels and Resorts,
2000 U.S. Dist. LEXIS 4107 ( S.D.N.Y. 2000) ( mere solicitation
of business insufficient for jurisdiction ); Feldman v.
Silverleaf Resorts, Inc., 2000 U.S. Dist. LEXIS 1005 (
S.D.N.Y. 2000 )( solicitation, regardless of how substantial,
is insufficient to establish jurisdiction ); Lane v. Vacations
Charters, Ltd., 750 F. Supp. 120 ( S.D.N.Y. 1990 )( ads
and toll free number insufficient contact ).
Third Circuit: Poteau v. Walt Disney World Company,
1999 U.S. Dist. LEXIS 12459 ( E.D. Pa. 1999 )( solicitation of
business through travel agents insufficient to establish jurisdiction
); Romero v. Holiday Inn, Utrecht, 1998 U.S. Dist.
LEXIS 19997 ( E.D. Pa. 1998 )( advertising through franchisor's
Worldwide Directory and making reservations through 800 number
insufficient for jurisdiction ).
Fifth Circuit: Luna v. Compagnie Paramena de Aviacion,
1994 WL 173369 ( S.D. Tex. 1994 )( solicitation of business and
800 number insufficient ).
Sixth Circuit: Denham v. Sampson Investments,
997 F. Supp. 840 ( E.D. Mich. 1998 )( sending brochures to forum
and reserving rooms at hotels insufficient contact ).
Tenth Circuit: Rainbow Travel Service, Inc. v. Hilton
Hotels Corp., 896 F. 2d 1233 ( 10th Cir. 1990 )( jurisdiction
based upon solicitation and contract formation in the forum );
Afflerbach v. Cunard Line, Ltd., 14 F. Supp. 2d
1260 ( D. Wyo. 1998 )
( national advertising and selling tours through travel agents
insufficient contact ).
State Courts:
New York: Sedig v. Okemo Mountain, 204 A.D.
2d 709, 612 N.Y.S. 2d 643 ( 1994 )( mere solicitation insufficient
).
Texas: M.G.M. Grand Hotel, Inc. v. Lee Castro,
8 S.W. 3d 403 ( Tex. App. 1999 )( solicitation plus doctrine followed
in
Texas ).
[29]
See Burger King Corp. v. Rudzewicz, 471 U.S.
462, 476, 105 S. Ct. 2174, 85 L. Ed. 2d 528 ( 1985 ).
[30]
See New York C.P.L.R. § 302(a).
[31]
See Shute v. Carnival Cruise Lines, 863 F. 2d 1437,
1440-1441
( 9th Cir. 1988 ), superceded 897 F. 2d 377 ( 9th
Cir. 1990 ), rev'd 499 U.S. 585, 111 S. Ct. 1522,
113 L. Ed. 2d 622 (1991 )( forum selection clause enforced ).
[32]
Id. See also Federal Deposit Ins. Corp. v. British American
Insurance Co., Ltd., 838 F. 2d 1439, 1442 ( 9th Cir. 1987
).
" an Internet connection allows a consumer to contact a hotel chain for reservations directly and without charge. The distinction of using a computer hooked to a telephone/data line is not relevantly different from using a handset connected to that same line; one is in writing and one is by voice-a distinction without difference in this context".
[34] Zippo Manufacturing Co. v. Zippo Dot Com, Inc., 952 F. Supp. 1119 ( W.D. Pa. 1997 ).
[35] Id. at 952 F. Supp. 1121( " Dot Com's Web Site contains information about the company, advertisements and an application for its Internet news service...A customer who wants to subscribe ...fills out an on-line application...Payment is made by credit card over the Internet or the telephone. The application is then processed and the subscriber is assigned a password which permits the subscriber to view and/or download Internet newsgroup messages that are stored on the defendant's server in California" ).
[36]
See
Second Circuit: American Homecare Federation, Inc.
v. Paragon Scientific Corp., 1998 WL 790590 ( D. Conn.
1998 )
( " The Website does not list...products which are sold nor does it provide any process for ordering..No sales..occur through the Website and an individual accessing the site cannot order..It does not provide anyone with files to download nor does it link to anyone else's Website " );Edberg v. Neogen Corp., 17 F. Supp. 2d 104 ( D. Conn. 1998 )
( " there is no evidence that any user in Connecticut accessed Neogen's Web site or purchased products based upon the Web site advertisement...Internet users could not order products directly from the Web site...it required them to call an ` 800 ` number in Michigan or write Neogen in Michigan or Kentucky " );Hearst Corp. v. Goldberger, 1997 WL 97097 ( S.D.N.Y. 1997 )( Web site with E-mail contact ); Benusan Restaurant Corp. v. King, 937 F. Supp. 295, 301
( S.D.N.Y. 1996 ), aff'd 126 F. 3d 25 ( 2d Cir. 1997 )
( Missouri nightclub's passive web site ).
Third Circuit: Remich v. Manfredy, 1999 WL 257754 ( E.D. Pa. 1999 )( passive web site offering general information and advertising insufficient contact with forum ); Molnlycke Health Care AB v. Dumex Medical Surgical Products Ltd., 1999 WL 695579 ( E.D. Pa. 1999 )( passive website does not confer jurisdiction ); Grutkowski v. Steamboat Lake Guides & Outfitters, Inc., 1998 U.S. Dist. LEXIS 20255 ( E.D. Pa. 1998 )( web site contains information, photographs, map and e-mail connection; reservations can not be made on the web site ).
Fourth Circuit: Roche v. Worldwide Media, Inc., 90 F. Supp. 2d 714 ( E.D. Va. 2000 )( pornograhic web site can only be described as passive ); Esab Group, Inc. v. Centricut, LLC, 1999 WL 27514 ( D.S.C. 1999 )( web page which provides information but requires customer to place an order through an 800 telephone number is insufficient for assertion of personal jurisdiction ).
Fifth Circuit: Mink v. AAAA Development, L.L.C., 190 F. 3d 333 ( 5th Cir. 1999 )( no long arm jurisdiction based upon printable mail-in order form and toll free number and e-mail address ); Lofton v. Turbine Design, Inc., 100 F. Supp. 2d 404
( N.D. Miss. 2000 )
( " the primary purpose of the website is for advertising. The website does not contain a price list for services, contract for engagement of services, or order form. It is not suited for shopping or ordering online " );Nutrition Physiology Corp. v. Enviros Ltd., 87 F. Supp. 2d 648 ( N.D. Tex. 2000 )( passive web site does not confer jurisdiction ); Broussard v. Deauville Hotel Resorts, Inc., 1999 WL 62152 ( E.D. La. 1999 )( slip and fall in Florida hotel; no long arm jurisdiction based upon passive website ); Mid-City Bowling Lanes & Sports Palace, Inc. v. Ivercrest, Inc., 35 F. Supp. 507 ( E.D. La. 1999 )( no personal jurisdiction based upon passive website ).
Sixth Circuit: Bailey v. Turbin Design, Inc., 86 F. Supp. 2d 790 ( W.D. Tenn. 2000 )(
" there is no indication whatsoever that TDI's website is anything other than wholly passive" ).Ninth Circuit: Cybersell, Inc. v. Cybersell, Inc., 130 F. 3d 414, 419 ( 9th Cir. 1997 )
( " conducted no commercial activity over the Internet in Arizona. All that it did was post an essentially passive home page on the Web " );McDonough v. Fallon McElligott, Inc., 1996 WL 753991 ( S.D. Cal. 1996 )
( " fact that ( defendant ) has a web site used by ( forum state residents ) cannot establish jurisdiction by itself " ).Tenth Circuit: Soma Med. Int'l v. Standard Chartered Bank, 196 F. 3d 1292 ( 10th Cir. 1999 )( no jurisdiction based on web site that only provided information ); SF Hotel Company, L.P. v. Energy Investments, Inc., 985 F. Supp. 1032, 1035 ( D. Kan. 1997 )
( " Boto's advertisement in a trade publication appears on the Internet. Boto did not contract to sell any goods or services...over the Internet site " ).Eleventh Circuit: JB Oxford Holdings, Inc., 1999 WL 1068444 ( S.D. Fla. 1999 )( web site providing connections to Internet, listing of national toll free telephone number and a pending application to do business in Florida provided insufficient contacts with Florida to permit exercise of personal jurisdiction ).
District of Columbia Circuit: GTE New Media Serv. Inc. v. Bellsouth Corp., 199 F. 3d 1343 ( D.C. Cir. 2000 )( Yellow Pages accessibility insufficient for long arm jurisdiction ); Mallinckrodt Medical, Inc. v. Sonus Pharmaceuticals, Inc., 989 F. Supp. 265, 272 ( D.C.D.C. 1998 )
( " The act of posting a message on an AOL electronic bulletin board-which certain AOL subscribers may or may not choose to access ( is not sufficient for personal jurisdiction ) " ).State Courts:
California: Jewish Defense Organization, Inc. v. Superior Court, 85 Cal. Rptr. 2d 611 ( Cal. App. 1999 )( defamation action; a passive web site delivering only information insufficient contact with forum for assertion of personal jurisdiction ).
New Jersey: Ragonese v. Gaston Rosenfeld, 318 N.J. Super. 63, 722 A. 2d 991 ( 1998 )( foreign air carrier's passive web site insufficient for jurisdiction ).
New York: Nationwide Insurance Co. v. Holiday Inn, New York Law Journal, Jan. 27, 2000 ( N.Y. Sup. )( passive web site and 800 number insufficient for jurisdiction; Messelia v. Costa, New York Law Journal, Feb. 14, 2000 ( N.Y. Civ. )( passive web site providing information insufficient for assertion of personal jurisdiction ).
Oregon: Millenium Enterprises v. Millenium Music, 49 USPQ2d 1878 ( Oregon Jan. 4, 1999 ).
[37]
See
Second Circuit: Inset Systems, Inc. v. Instruction
Set, Inc., 937 F. Supp. 161, 164 ( D. Conn. 1996 )( Web
site and toll free number;
" advertising via the Internet is solicitation of a sufficient repetitive nature " ).Fourth Circuit: Bochan v. La Fontaine, 1999 WL 343780 ( E.D. Va. 1999 )( posting of libelous messages on the Internet by Texas and New Mexico residents sufficient grounds for the assertion of personal jurisdiction in Virginia where web site was accessed ).
Ninth Circuit: Panavision Int'l, L.P. v. Toeppen, 938 F. Supp. 616 ( C.D. Cal. 1996 )( fraud claims; jurisdiction based upon Web site contact alone ).
District of Columbia Circuit: Heroes, Inc. v. Heroes Found, 958 F. Supp. 1 ( D.C.D.C. 1996 )( Web site, toll free number and local newspaper ad ).
[38] Weber v. Jolly Hotels, 977 F. Supp. 327 ( D.N.J. 1997 ).
[39] See Van Eeuwen v. Heidelberg Eastern, Inc., 124 N.J. Super. 251, 306 A. 2d 79 ( 1973 ); Rutherford v. Sherburne Corp., 616 F. Supp. 1456 ( D.N.J. 1985 ). See also Ns. 17 & 18, supra.
[40]
See Hasbro, Inc. v. Clue Computing, Inc., 994 F.
Supp. 34, 38
( D. Mass. 1997 ).
[41] See Digital Equipment Corp. v. Altavista Tech, 960 F. Supp. 456 ( D. Mass 1997 ).
[42] See CompuServe, Inc. v. Patterson, 89 F. 3d 1257 ( 6th Cir. 1996 ).
[43] See EDIAS Software Int'l v. BASIS Int'l Ltd., 947 F. Supp. 413 ( D. Ariz. 1996 ).
[44] See Catalytic Combustion Corp. v. Vapor Extraction Technology, Inc., 2000 Wisc. App. LEXIS 774 ( Wisc. App. 2000 ).
[45] See American Eyewear, Inc. v. Peeper's Sunglasses And Accessories, Inc., 2000 U.S. Dist. LEXIS 6875 ( N.D. Texas 2000 ).
[46] See Resuscitation Tech., Inc. v. Continental Health Care Corp., 1997 WL 148567 ( S.D. Ind. 1997 ).
[47]
See Gary Scott International, Inc. v. Baroudi, 981
F. Supp. 714 ( D. Mass. 1997 ).
[48] See Citigroup Inc. v. City Holding Co., 97 F. Supp. 2d 549 ( S.D.N.Y. 2000 ).
[49] See TY, Inc. v. Max Clark, 2000 U.S. Dist. LEXIS 383 ( N.D. Ill. 2000 )( no jurisdiction;" However, at the same time, the defendants do not clearly do business over their web site, for they do not take orders nor enter into contracts over the web site " ).
[50] See People Solutions, Inc. v. People Solutions, Inc., 2000 U.S. Dist. LEXIS 10444 ( N.D. Tex. 2000 ).
[51]
See
Second Circuit: American Network, Inc. v. Access
America/Connect Atlanta, Inc., 975 F. Supp. 494 ( S.D.N.Y.
1997 )( subscriptions for Internet services sold to customers
in the forum through contracts entered into on Web site ).
Third Circuit: Zippo Manufacturing Co. v. Zippo Dot
Com, Inc., 952 F. Supp. 1119 ( W.D. Pa. 1997 ).
Fourth Circuit: Easb Group, Inc. v. Centricut, LLC,
1999 WL 27514 ( D.S.C. 1999 )( web page which provides information
but requires customer to place an order using an 800 telephone
number is insufficient to confer jurisdiction ).
Fifth Circuit: Origin Instruments v. Adaptive Computer
Systems, 1999 U.S. Dist. LEXIS 1451 ( N.D. Texas 1999
)( no jurisdiction; failure to show sales in forum through interactive
Web site ); Thompson v. Handa-Lopez, Inc., 998 F.
Supp. 738
( W.D. Tex. 1998 )( corporation subject to personal jurisdiction
in Texas based upon entering into contracts to play casino games
with Texas citizens ); Mieczkowski v. Masco Corp.,
997 F. Supp. 782, 785 ( E.D. Texas 1998 )
( " Web site lists various categories...individuals can view various furniture selections..individual pieces of furniture can be viewed..as well as price information..an order form can be printed..(customers may) check the status of their purchases.. information is available regarding freight costs..communicate directly with ` on-line ` sales representatives " ).
Eighth Circuit: Uncle Sam's Safari Outfitters, Inc. v. Uncle Sam's Army Navy Outfitters, 96 F. Supp. 2d 919 ( E.D. Mo. 2000 ) ( inoperable interactive web site still under construction insufficient for jurisdiction ).
Ninth Circuit: Stomp, Inc. v. NeatO, 61 F. Supp. 2d 1074
( C.D. Cal. 1999 )( web site functioned as a " virtual store " where " consumers [ could ] view descriptions, prices and pictures of various products [ and could ] add items to their " virtual shopping cart " and " check out " by providing credit card and shipping information ); Park Inns International v. Pacific Plaza Hotels, Inc., 5 F. Supp. 2d 762, 764-65 ( D. Ariz. 1998 )( interactive Web site accepted seven hotel reservations from customers in the forum ).
District of Columbia Circuit: Blumenthal v. Drudge, 992 F. Supp. 44, 56 ( D.C.D.C. 1998 )
( " The Drudge Report's web site allows browsers..to directly e-mail defendant..thus allowing an exchange of information..browsers who access the website may request subscriptions to the Drudge Report, again by directly e- mailing their requests to Drudge's host computer..the Drudge Report is..sent..to every e-mail address on his subscription list..constant exchange of information and direct communication " ).State Courts:
Connecticut: Gates v. Royal Palace Hotel, 1998 Conn. Super. LEXIS 3740 ( Conn. Super. 1998) ( jurisdiction based upon concentrated advertising, bookings through travel agents and
" invitation to Connecticut citizens to make reservations and other arrangements directly through the Internet " ).Oregon: Millunium Enterprises v. Millenium Music, 49 USPQ2d 1878 ( Oregon, Jan. 4, 1999 ).
[52] See Butler v. Beer Across America, 83 F. Supp. 2d 1261 ( N.D. Ala. 2000 )( interactive web site allowing consumers to purchase beer by using a credit card does not confer jurisdiction;
" Beer Across America's site does not even anticipate the regular exchange of information across the Internet...Rather it is closer to an electronic version of a postal reply card" ).
[53] For a discussion of forum selection clauses in travel contracts and forum non conveniens issues see Dickerson, Travel Abroad, Sue At Home: Updated, http://courts.state.ny.us/tandv/tasah.html.
[54] Decker v. Circus Circus Hotel, 1999 WL 319056 ( D.N.J. 1999 ).
[55] Carnival Cruise Lines, Inc. v. Shutte, 499 U.S. 585, 111 S. Ct. 39, 113 L. Ed. 2d 622 ( 1991 ).
[56] Effron v. Sun Line Cruises, Inc., 67 F. 3d 7 ( 2d Cir. 1995 ).[57] Schaff v. Sun Line Cruises, Inc., 999 F. Supp. 924 ( S.D. Tex. 1998 ).
[58] Hodes v. SNC Achille Lauro, 858 F. 2d 905 ( 3d Cir. 1988 ).
[59] O.C. Harden v. American Airlines, 178 F.R.D. 583 ( M.D. Ala. 1998 ).
[60] Jewel Seafoods Ltd. v. M/V Peace River, 39 F. Supp. 2d 628 ( D.S.C. 1999 ).[61] Carron v. Holland America Line-Westours, Inc., 51 F. Supp. 2d 322 ( E.D.N.Y. 1999 ).
[62] Rawlins v. Clipper Cruise Lines, 1998 American Maritime Cases 1254 ( N.D. Cal. 1995).
[63]
Hollmann v. Cunard Line Limited, 1998 American Maritime Cases 2168 ( N.Y. Sup.
1996 ).
[64] Doe v. Sun International Hotels, Ltd., 20 F. Supp. 2d 1328 ( S.D. Fla. 1998 ).
[65] Rodriquez v. Class Travel Worldwide, 2000 U.S. Dist. LEXIS 1926 ( E.D. La. 2000 ).
[66]
Paster v. Putney Student Travel,
Inc., 1999 U.S. Dist. LEXIS
9194 ( C.D. Cal. 1999 ).
[67] Walker v. Carnival Cruise Lines, 63 F. Supp. 2d 1083 ( N.D. Cal. 1999 ).
[68] O.C. Harden v. American Airlines, 178 F.R.D. 583 ( M.D. Ala. 1998 ).
[69]
Carron v. Holland America Line-Westours,
Inc., 51 F. Supp. 2d 322 (
E.D.N.Y. 1999 ).
[70] Doe v. Sun International Hotels, Ltd., 20 F. Supp. 2d 1328 ( S.D. Fla. 1998 ).
[71] Gomez v. Royal Caribbean Cruise Line, 1997 WL 256093 ( D.P.R. 1997 ).
[72] Smith v. Doe, 1998 WL 46891 ( E.D. La. 1998 ).
[73] Stobaugh v. Norwegian Cruise Line Limited, 5 S.W. 2d 232 ( Tex. App. 1999 ).
[74] Carnival Cruise Lines, Inc. v. Shutte, 499 U.S. 585, 111 S. Ct. 39, 113 L. Ed. 2d 622 ( 1991 ).
[75] Kaufman v. Ocean Spirit Shipping Ltd., 1993 American Maritime Cases 178 ( W.D. Mich. 1990 ).
[76] Carnival Cruise Lines, Inc. v. Shutte, 499 U.S. 585, 111 S. Ct. 39, 113 L. Ed. 2d 622 ( 1991 ).
[77] Bhatnagar v. Surrendra Overseas, Ltd., 958 F. Supp. 958 ( D. Nev. 1993 ).
[78] Schaff v. Sun Line Cruises, Inc., 999 F. Supp. 924 ( S.D. Tex. 1998 ).