opinion: Elias SIEGELMAN, individually, and as Administrator of the Estate of Eva Siegelman, deceased, Plaintiff-Appellant, v. CUNARD WHITE STAR Limited, Defendant-Appellee.
  No. 14, Docket 23054.
  United States Court of Appeals, Second Circuit.
  Argued Nov. 9, 1954.
  Decided Feb. 17, 1955.
  Frank, Circuit Judge, dissented.
  David Fox, New York City, for appellant.
  Lord, Day & Lord, William J. Brennan, New York City, for appellee.
  Before CLARK, Chief Judge, and FRANK and HARLAN, Circuit Judges.
  HARLAN, Circuit Judge.
  Plaintiff, in his own right and as administrator of his wife’s estate, brings this action to recover for injuries suf-. fered by his wife on the defendant’s vessel, the R.M.S. Queen Elizabeth. The action was begun in a New York state court on December 14, 1951, and removed on diversity grounds to the federal district court for the Southern District of New York on January 3, 1952, the requisite jurisdictional amount being present.
  On September 9, 1949, the Compass Travel Bureau, Inc., Cunard’s New York agent, issued to Mr. and Mrs. Elias Siegelman a document describing itself as a “Contract Ticket.” It was a large sheet of light green paper, about 13 inches long and 11 inches wide. On the back were certain notices to passengers, relating to baggage, time of collection of ticket, location of the company’s piers and offices, etc. On the front was printed in black Cunard’s promise to provide specified transportation, in this case from New York to Cherbourg, subject to certain exceptions, and to 22 “terms and conditions,” also printed in black. Printed in red in heavier type was a notice directing the attention of passengers to these “terms and conditions.” Also printed in red, and in capital letters, was a statement that “it is mutually agreed that this contract ticket is issued by the Company and accepted by the passenger on the following terms and conditions.” The paper also contained a space where the departure time, the names of the passengers and of the ship, and other data were typed in. The paper was stated to be non-transferable. In a space provided for the signature of the company, the name of the Compass Travel Bureau was typed. The paper was not signed by either of the passengers.
  On September 24, 1949, when the Queen Elizabeth had been at sea four days, Mrs. Siegelman was injured. While she was seated in a dining room chair, she and the chair were overthrown. Her chair was alleged to be the only one in the dining room which was not bolted to the floor. Upon returning to New York, the Siegelmans retained an attorney to prosecute their claim against Cunard. On August 31, 1950, after Cunard’s doctor had examined Mrs. Siegelman, Cunard offered $800, the approximate amount of medical expenses stated to have been incurred by the plaintiff and his wife, in settlement of the claim. This offer was made to the Siegelmans’ lawyer over the telephone by Swaine, a claim agent of Cunard. Noticing that the ticket required suits for bodily injury to be brought within a year of the injury, and that the injury had occurred barely less than a year ago, the lawyer asked Swaine whether it would be necessary to begin suit in order to protect his clients’ rights. Swaine is said to have stated that no suit was necessary, that the filing of an action would be futile in view of the prospect of early settlement, and that Cunard’s offer would stand open.
  Subsequently Mrs. Siegelman died. Then, on January 4, 1951, Cunard withdrew its offer, which had not yet been accepted, stating that it could not bo tendered to any one other than the injured party.
  On December 14, 1951, this suit was begun, claiming on behalf of the deceased damages for pain and medical expenses, and on behalf of her husband, damages for other medical expenses and for loss of consort. Cunard denied legal responsibility for the accident, and set up as a further defense the plaintiff’s failure to bring the action within a year of the date the injury was suffered.
  In January, 1953, the defendant moved to dismiss the action on the latter ground. Treating the motion as one for summary judgment, and having received affidavits from the attorneys and from the plaintiff, the court found the issues for the defendant, and dismissed the complaint.
  On this appeal appellant asserts that Cunard is barred from using the period of limitation as a defense, because of Swaine’s statement that suit was unnecessary. The provisions of the “Contract Ticket” relevant to the appeal are as follows:
  “10. * * * No suit, action or proceeding against the Company or the ship, or the Agents of either, shall be maintainable for loss of life of or bodily injury to any passenger unless * * * (b) * * * the suit, action or proceeding is commenced within one year from the day when the death or injury occurred.
  “11. The price of passage hereunder has been fixed partly with reference to the liability assumed by the Company as defined by this contract, and no agreement, alteration or amendment creating any other or different liability shall be valid unless made in writing and signed for the Company by its Chief Agent at the port of embarkation.
  “20. All questions arising on this contract ticket shall be decided according to English Law with reference to which this contract is made.”
  Before reaching the merits of the plaintiff’s claim, we must deal with a number of preliminary questions: (1) Are federal or state choice-of-law rules to be applied here? (2) What is the applicable choice-of-law- rule of the proper authority? (3) If the applicable choice-of-law rule points to the use of English law, what difference is made by the facts that English law was not pleaded or proved below, and that the plaintiff made no attempt to supply affidavits of experts on English law, after the trial Judge had offered him an opportunity to do so?
  I.
  This case involves a claim based on a tort, committed on the high seas, and a defense based on a contract made in New York, to be performed there, on the high seas, and abroad. Our first question, though, is not what law governs the issues involved, but rather what law, federal or New York, controls the choice of the governing law. This is not a question of choice of laws, properly speaking, but rather a question of the division of competence between federal and state authority.
  The Constitution, Article III, Section 2, extended the federal judicial power “to all Cases of admiralty and maritime Jurisdiction.” In implementing this provision in the Judiciary Act of 1789, Congress provided that litigants might also take advantage ' of their common-law remedies, and this provision was interpreted to permit suits on maritime causes in state as well as federal courts. See discussion in Chelentis v. Lucken-bach S. S. Co., 1918, 247 U.S. 372, 38 S.Ct. 501, 62 L.Ed. 1171. From an early time, therefore, maritime litigation has been carried on in both systems of courts. And the law applied has been both state and federal; for example, state wrongful death acts have been applied in federal courts. See Levinson v. Deupree, 1953, 345 U.S. 648, 73 S.Ct. 914, 97 L.Ed. 1319, and the Jones Act, 46 U.S.C.A. § 688, extending the benefits of the Federal Employers’ Liability Act to maritime workers, has been applied in state courts, see Garrett v. Moore-McCormack Co., Inc., 1942, 317 U.S. 239, 63 S.Ct. 246, 87 L.Ed. 239. Under these circumstances it is not always easy to ascertain whether federal or state law governs particular issues.
  In cases where federal jurisdiction is based solely on diversity of citizenship, the doctrine of Erie R. R. v. Tompkins, 1938, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188, requires the application by the federal court of substantially the same law as would be applied by the courts of the state in which the federal court is held. If this case were governed by Erie, we would be required to apply New York’s choice-of-law rules. Klaxon Co. v. Stentor Electric Mfg. Co., 1941, 313 U.S. 487, 61 S.Ct. 1020, 85 L.Ed. 1477. But suits brought in admiralty are not governed by Erie. Levinson v. Deupree, supra. And even though this case was not begun in the federal admiralty court, Erie does not require the federal court to handle the case in substantially the same fashion as a state court would. Jansson v. Swedish-American Line, 1 Cir., 1950, 185 F.2d 212, 30 A.L.R.2d 1385. That is not to say, however, that state and federal courts may always apply different substantive law in maritime cases. On the contrary, where the cause of action is created by a state statute the federal court must presumably follow the state. court’s interpretation of it with regard to substantive matters, see Levinson v. Deupree, supra, assuming, of course, that the state-created right may be received into admiralty under the doctrine set out in Southern Pacific Co. v. Jensen, 1917, 244 U.S. 205, 37 S.Ct. 524, 61 L.Ed. 1086, and its successors. The same substantive law must also be applied by federal and state courts in cases governed by federal statutes, see Garrett v. Moore-McCormack Co., Inc., supra. It has also been said that the same substantive law applies to common law actions whether brought in federal or state courts, Jans-son v. Swedish-American Line, supra; and a long list of authorities is cited for this proposition, although Mr. Justice Frankfurter, in Caldarola v. Eckert, 1947, 332 U.S. 155, 67 S.Ct. 1569, 91 L.Ed. 1968, may have left that issue in doubt. Cf., however, the majority and concurring opinions in Pope and Talbot, Inc. v. Hawn, 1953, 346 U.S. 406, 74 S.Ct. 202, 98 L.Ed. 143.
  Under the circumstances, we consider that we are not bound to apply New York’s choice-of-law rules. Erie and Klaxon do not compel us to. And this is not a case, like Levinson v. Deupree, supra, where the federal court is considering a claim based on a state-created right. Even if it were, it is possible that the federal court would not be bound by the state’s choice-of-law rule, unless the rule limited the scope of the right. Instead, the claim here is for a tort committed on the high seas, and the federal choice-of-law rule might well be binding on the state courts, if either rule is to be binding in both sets of courts.
  In Jansson v. Swedish American Line, supra, a suit brought originally on the civil side of the federal court but also involving a maritime tort, the court ap-applied the federal choice-of-law rule. It is true that in that case there was no defense, as there is here, based on a contract made in one of the United States, but we do not think that should change the result. That might be a ground for judging the claim and the defense by different laws. But as far as choice-of-law rules are concerned, either the forum’s rule should be applied automatically, or as Jansson suggests, the nature of the claim should govern which rule controls. Under both of these approaches, the federal choice-of-law rule applies here.
  II.
  Our next question is; under the federal choice-of-law rule, what law governs the issues here? We are not concerned with the law applicable to the accident. Instead we must decide what law applies to the validity and interpretation of certain provisions of the “Contract Ticket,” and to the effect of Swaine’s conduct upon Cunard’s right to resort to the one-year limitation period in the contract.
  The ticket stipulated that “All questions arising on this contract ticket shall be decided according to English Law with reference to which this contract is made.” Considering, as we do, the ticket to be a contract — -see Foster v. Cunard White Star, 2 Cir., 1941, 121 F.2d 12— the provision that English law should govern must be taken to represent the intention of both parties. Therefore, this provision, if effective under the federal choice-of-law rule, renders English law applicable here, even though, absent the provision, some other law would govern under the applicable federal conflicts rule. See Liverpool & Great Western Steam Co. v. Phenix Ins. Co., 1889, 129 U.S. 397, 9 S.Ct. 469, 478, 32 L.Ed. 788, in which the Supreme Court said: “ * * * the general rule that the nature, the obligation, and the interpretation of a contract are to be governed by the law of the place where it is made, unless the parties at the time of making it have some other law in view, requires a contract of affreightment, made in one country between citizens or residents thereof, and the performance of which begins there, to be governed by the law of that country * * * ”.
  Liverpool also indicates that there may be an exception to this rule where a contract stipulates another law, but the scope of this exception is not clear. Thus, since we cannot assume that the parties’ choice of law will always foreclose the court from applying another law, our question is whether the contract provision here should have the effect, under federal conflicts rules, of making the English law applicable to the particular questions posed by this case. While this question may appear on the surface to be purely. one of conflict of laws, we think it also, involves interpretation of the contract. For it is not altogether free from doubt what is meant by the stipulation that “All questions arising on this, contract ticket shall be decided according to. English Law * * See 40 Col.L.Rev. 518, 522-23 (1940), criticizing one. interpretation of a similar provision.
  Our issue, then, involves two lines of inquiry: (1) What questions did the parties intend to be controlled by English lav/? and (2) Will the federal conflicts rule give effect to their intention? In pursuing the first inquiry, we must examine more closely the provision of the ticket quoted above.
  Three questions as to the scope of this provision arise under its language. First, are questions to be decided by the “whole” English law, including its conflicts rules, or just by the substantive English law? That is, are questions to be decided according to the law of England, or instead, as an English court might decide them, applying where appropriate the law of some other country? We think the provision must be read as referring to the substantive law alone, for surely the major purpose of including the provision in the ticket was to assure Cunard of a uniform result in any litigation no matter where the ticket was issued or where the litigation arose, and this result might not obtain if the “whole” law of England were referred to. Second, does the provision intend that questions of validity of the contract and its provisions, as well as questions of interpretation, are to be governed by English law? The language of the clause, covering “all questions,” indicates that validity as well as interpretation is embraced. Third, is the recital meant to require the application of English law to the question of what conduct may amount to a waiver of its provisions? Although the wording of the clause — relating to questions arising “on” the contract — may indicate that such a question was not meant to be covered, it appears unnatural to hold that all questions of validity and interpretation were intended to be governed by English law but that this question was not. We therefore consider that the question of what conduct was sufficient to operate as a waiver of the ticket’s provisions was also meant to be determined by English law.
  We now come to the inquiry as to the extent to which this provision, so construed, is to be given effect in deciding the particular issues before us. Those issues are: (1) Is the one-year limitation period provided in the contract for the bringing of suits valid? (2) Does Swaine’s conduct prevent Cunard from using the period as a defense? and (3) How is this matter affected by the clause requiring alterations of the contract to be in writing ? It appears not to be contested that the ticket should be treated as a contract and that failure to bring the action within the contract limitation period would be a defense under English law — see Jones v. Oceanic Steam Navigation Co., [1924] 2 K.B. 730, but since the same result would follow under American law — see 46 U.S.C.A. § 183(b); Scheibel v. Agwilines, Inc., 2 Cir., 1946, 156 F.2d 636 — we need not decide whether English law is applicable to the first of these issues. As to the second and third issues — where English and American law may differ — in the view which we take of the case, we need really only deal with applicability of English law to the second issue — viz., whether Swaine’s conduct prevents Cunard from using the one-year limitations provision as a defense — although- in light of what we say below we think that English law would clearly control the third issue —viz., the effect of the “alterations” clause.
  As we have said, we construe the contract as establishing the intention of the parties that English law should govern both the interpretation and validity of its terms. And we think it clear that the federal conflicts rule will give effect to the parties’ intention that English law is to be applied to the interpretation of the contract. Stipulating the governing law for this purpose is much like stipulating that words of the contract have the meanings given in a particular dictionary. See Cheatham, Goodrich, Gris-wold, & Reese, Cases on Conflict of Laws 461 (1951). On the other hand, there is much doubt that parties can stipulate the law by which the validity of their contract is to be judged. Beale, Conflict of Laws § 332.2 (1935). To permit parties to stipulate the law which should govern the validity of their agreement would afford them an artificial device for avoiding the policies of the state which would otherwise regulate the permissibility of their agreement. It may also be said that to give effect to the parties’ stipulation would permit them to do a legislative act, for they rather than the governing law would be making their agreement into an enforceable obligation. And it may be further argued that since courts have not always been ready to give effect to the parties’ stipulation, no real uniformity is achieved by following their wishes. See Beale, op. cit. supra, at page 1085.
  Here, of course, the question is neither one of interpretation nor one of validity, but instead involves the circumstances under which parties may be said to have partially rescinded their agreements or to be barred from enforcing them. The question is, however, more closely akin to a question of validity. Nevertheless, we see no harm in letting the parties’ intention control. See Hal Roach Studios, Inc., v. Film Classics, 2 Cir., 1946, 156 F.2d 596, 598; Duskin v. Pennsylvania-Central Airlines Corp., 6 Cir., 1948, 167 F.2d 727, 729-730; Note, Commercial Security and Uniformity through Express Stipulations in Contracts as to Governing Law, 62 Harv.L.Rev. 647 (1949). Instead of viewing the parties as usurping the legislative function, it seems more realistic to regard them as relieving the courts of the problem of resolving a question of conflict of laws. Their course might be expected to reduce litigation, and is to be commended as much as good draftsmanship which relieves courts of problems of resolving ambiguities. To say that there may be no reduction in litigation because courts may not honor the provision is to reason backwards. A tendency toward certainty in commercial transactions should be encouraged by the courts. Furthermore, in England, where much of the litigation on these contracts might be expected to arise, the parties’ stipulation would probably be respected. Vita Food Products, Inc. v. Unus Shipping Co., Ltd., [1939] A.C. 277 (P.C.) (similar provision in bill of lading given effect; construed, however, as referring to England’s whole law, including its conflicts rules).
  Where the law of the parties’ intention has been permitted to govern the validity of contracts, it has often been said (1) that the choice of law must be bona fide, and (2) that the law chosen must be that of a jurisdiction having some relation to the agreement, generally either the place of making or the place of performance. The second of these conditions is obviously satisfied here. The fact that a conflicts question is presented in the absence of a stipulation is some indication that the first condition is also satisfied. Furthermore, there does not appear to be an attempt here to evade American policy. We have no statute indicating a policy contrary to England’s on this subject. Cf. New York Life Insurance Co. v. Cravens, 1900, 178 U.S. 389, 20 S.Ct. 962, 44 L.Ed. 1116. And there is no suggestion that English law is oppressive to passengers. We regard the primary purpose of making English law govern here as being not to substitute English for American policies, but rather on the one hand, to achieve uniformity of result, which is often hailed as the chief objective of the conflict of laws, and on the other hand, to simplify administration of the contracts in question. Cunard’s employees need be trained in only one set of legal rules.
  This is not to suggest that English and American policies on this subject are identical. Any difference in law reflects some difference in policy. Consequently, to the extent English and American policies may differ on this question, we would consider that the parties may choose to have the English policies apply. But we express no opinion on what result would follow if we had stronger policies at stake, or if the parties had attempted a feined rather than a genuine solution of the conflicts problem.
  III.
  We must next decide whether it is within our competence to apply English law, which was neither pleaded nor proved below.
  Pleading the foreign law was clearly unnecessary. The Federal Rules of Civil Procedure, 28 U.S.C.A., apply here. Under Rule 8, a pleading must contain a short and plain statement of the claim showing that the pleader is entitled to relief. It is not necessary to set out the legal theory on which the claim is based. See Gins v. Mauser Plumbing Supply Co., Inc., 2 Cir., 1945, 148 F.2d 974.
  Whether we are at liberty to interpret and apply foreign law which has not been proved below is a more diflicult question.
  When sources of foreign law were not readily accessible, it was impractical to expect a judge to ascertain applicable foreign law, as might be expected of him with regard to the law of his state. It is most likely that for this reason courts in this country came to require foreign law to be proved as a fact if it was to be applied. Otherwise a presumption as to the applicability of local common law, sometimes as modified by statute, would be followed. See Hart-wig, Congressional Enactment of Uniform Judicial Notice Act, 40 Mich.L. Rev. 174, 176-78 (1941). Because of the increasing availability of the statutory and judge-made law of jurisdictions within the United States, many states now have statutes, such as the Uniform Judicial Notice of Foreign Law Act, requiring that law to be judicially noticed. See 42 Mich.L.Rev. 517 n. 65 (1943). Furthermore, while the difficulty of ascertaining foreign law might have been a reason for empowering a judge to disregard that law if not proven, it was hardly cause for requiring him to disregard it. Consequently, some statutes permit judges to apply unproven foreign law, even though it is not readily accessible. See Callahan and Ferguson, Evidence and the New Federal Rules of Civil Procedure, 47 Yale L.J. 194, 210-13 (1937). Under such statutes a judge may, but need not, require foreign law to be proved in the usual way. The New York statute, Civil Practice Act § 344-a, is of this latter type.
  Rule 43(a) of the Federal Rules of Civil Procedure permits the presentation of evidence according to the most convenient method prescribed in (1) the statutes of the United States, (2) the rules of evidence formerly applied in suits in equity by federal courts, or (3) the rules of evidence applied in the courts of general jurisdiction of the state in which the federal court is held. It may be argued, of course, that Rule 43(a) is not intended to touch the question whether it is necessary to introduce evidence of foreign law in the first place, but deals only with the manner of presenting it. Nevertheless, it seems to us, as to Professor Moore, Moore’s Federal Practice, § 43.09, that under the Rule, the New York judicial notice procedures, if most liberal, should apply. The most convenient method of presenting the foreign law is obviously not to have to introduce evidence on it at all, but simply to treat it in the same fashion as domestic law. Consequently, since a New York judge could consider and apply unproven foreign law, a federal district judge sitting in New York may do likewise. To this extent the Liverpool case, 1889, 129 U.S. 397, 9 S.Ct. 469, 32 L.Ed. 788, and the authorities cited therein, are out of date. Contrary statements made in cases not governed by the Federal Rules, such as Black Diamond S. S. Corp. v. Robert Stewart & Sons, 1949, 336 U.S. 386, 396-397, 69 S.Ct. 622, 93 L.Ed. 754, and U. S. ex rel. Jelic v. District Director of Immigration, 2 Cir., 1939, 106 F.2d 14, are of course irrelevant.
  The District Judge in this case appears to have exercised both his options under the New York law. He took notice of the English law and stated what he believed it to be. He also offered the parties an opportunity to submit affidavits of experts on English law, if it was thought that his understanding was incorrect. So far as appears, no affidavits were submitted.
  On this state of the record, it might be argued that the plaintiff is bound by the Judge’s understanding of the foreign law. But legal claims not presented below can normally be presented on appeal, unless waived or disclaimed. And in a situation such as this, where the plaintiff contests the applicability of the English law, we would not think that if this contention fails, his entire suit must also fail if not sustained by the trial Judge’s understanding of the English law. It is at least within our discretion to consider whether the English law as we understand it supports the plaintiff’s position.
  IV.
  Finally we come to the substantive question whether Swaine’s conduct prevents Cunard from successfully invoking the contractual limitation period as a defense.
  Upon argument of the motion to dismiss the complaint as untimely, the plaintiff submitted affidavits opposing the motion. One of these was an affidavit of the lawyer retained by the Sie-gelmans to press their claim against Cunard. The lawyer described the circumstances of Cunard’s offer of settlement:
  “I had made a demand for $5,000 to settle these claims and Mr. Swaine advised me that he would have to take the matter up with his committee. Thereafter on August 31, 1950, three weeks before the limitation on the commencement of action expired, Mr. Swaine countered with an offer of $800.00.
  “In that conversation Mr. Swaine told me that such offer was predicated to cover plaintiffs’ special damages but from the tenor of the conversation, it appeared to me that such offer might be somewhat increased.
  “I told Mr. Swaine that I would communicate this offer to my clients and that I would thereafter call him to advise him of their wishes in the matter. However, I told him that it might take sometime for my clients to consider such offer in view of the fact that at this time my clients were living apart. Mr. Swaine replied that there was no rush on the offer because it would stand open on the file and that the defendant believed our special damages should be paid as a matter of good will.
  “Since the time to commence this action was going to expire three weeks later, on September 24, 1950, I told Mr. Swaine it appeared that I would have to commence my action in order to protect my clients’ interests. Mr. Swaine answered that said suit was not necessary and that there was no point to commencing an action at this time since it appeared to both of us that there was an excellent chance of settling the matter.”
  On the basis of these assertions, which were uncontroverted, the plaintiff sought to establish either waiver of the limitation or that the defendants were estopped from relying upon it. The trial Judge appears to have held that the plaintiff was not entitled to assume that Swaine was authorized to waive the limitation, and held for the defendant.
  At this state of the proceedings, though, we think that the Judge should have assumed that Swaine’s acts bound the defendant. If Swaine had actually or impliedly been authorized to waive periods of limitation, and had done so, then the defendant could hardly rely on the contractual limitation. The scope of Swaine’s authority was a fact which the plaintiif might have established on trial. It was material, and could not properly have been presumed to be undisputed. Therefore, this question should not have been resolved against the losing party on summary judgment.
  If we assume, however, that Swaine was authorized to speak as he did, it does not follow that the plaintiff should prevail. For taking the facts as he has stated them, he has not established waiver or estoppel under English law.
  It appears true that in England a promise, supported by consideration, not to plead the statute of limitations is a sufficient answer to a defense based on the statute. 20 Halsbury’s Laws of England, Limitation of Actions § 803 (2d Ed. 1936). And if there were a promise here, the plaintiff’s forbearance from suit within the limitations period might be good consideration. But it is not possible to treat the statements said to have been made by Swaine as a promise. The most reasonable interpretation of his remarks is that because of the excellent chances of settlement, filing suit would turn out to be wasted effort. Under this view of the matter, Swaine’s statement cannot be regarded as even a statement that Cunard intended not to plead the limitations period as a defense in the event that efforts at settlement proved unfruitful. But even if his statements could be regarded as a statement of what Cunard’s intention was at that time, and if it could be shown that Cunard’s intention then was otherwise, still there would seem to be no right to recovery. For in Yorkshire Insurance Co. v. Craine, [1922] 2 A.C. 541 (P.C.), the Judicial Committee of the Privy Council stated that in order to raise an estoppel by representation, the authorities required a misrepresentation of fact, and a misrepresentation of intention would not suffice, in spite of the frequently-quoted statement that the state of a man’s mind is as much a fact as the state of his digestion.
  Furthermore, even if Swaine’s conduct were held to suspend the running of the limitations period, we do not think that under English law, the running of the period would never resume. At the time of the statements in issue, about three weeks remained in the one-year period. After the withdrawal of Cunard’s offer on January 4, 1951, it could no longer be thought that Cunard would not use the defense of untimeliness to any action thereafter brought. Even if the limitations period was tolled, therefore, while the offer was outstanding, this lawsuit should have been commenced within three weeks of the receipt of the January 4 letter. The situation is analogous to that obtaining in fraud cases, where the English rule is that the period of limitations is neither suspended altogether nor begins at the time the fraudulent acts were committed, but begins instead at the time fraud is discovered or could be discovered with reasonable diligence. § 26, Limitation Act, 1939, 2 & 3 Geo. 6, c. 21.
  The plaintiff states that he was delayed for six months in obtaining letters of administration. But this delay apparently would not toll the statute of limitations under English law. 20 Hals-bury’s Laws of England, Limitation of Actions §§ 782, 821 (2d Ed. 1936, and Supp. 1953). Again, though, even if the running of the period were suspended, this lawsuit was begun too late, for letters of administration appear to have been granted on June 7, 1951, and this action was not commenced until December 14, 1951.
  On this view of the case it is not necessary to decide the effect English law would give to the provision requiring all alterations to the contract to be in writing and over the signature of Cunard’s chief agent at the port of embarkation.
  Affirmed.
instruction: What follows is an opinion from a United States Court of Appeals.
  Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
  In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
  To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
  United States of America,
  Plaintiff, Appellant
  v
  International Brotherhood of Widget Workers,AFL-CIO
  Defendant, Appellee.
  International Brotherhood of Widget Workers,AFL-CIO
  Defendants, Cross-appellants
  v
  United States of America.
  Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
  of the Board
  Plaintiff, Appellants,
  v
  United States of America,
  Defendant, Appellee.
  This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
  Note that if an individual is listed by name, but their appearance in the case is as a government official, then they should be counted as a government rather than as a private person. For example, in the case "Billy Jones & Alfredo Ruiz v Joe Smith" where Smith is a state prisoner who brought a civil rights suit against two of the wardens in the prison (Jones & Ruiz), the following values should be coded: number of appellants that fall into the category "natural persons" =0 and number that fall into the category "state governments, their agencies, and officials" =2. A similar logic should be applied to businesses and associations. Officers of a company or association whose role in the case is as a representative of their company or association should be coded as being a business or association rather than as a natural person. However, employees of a business or a government who are suing their employer should be coded as natural persons. Likewise, employees who are charged with criminal conduct for action that was contrary to the company policies should be considered natural persons.
  If the title of a case listed a corporation by name and then listed the names of two individuals that the opinion indicated were top officers of the same corporation as the appellants, then the number of appellants should be coded as three and all three were coded as a business (with the identical detailed code). Similar logic should be applied when government officials or officers of an association were listed by name.
  Your specific task is to determine the total number of appellants in the case that fall into the category "private business and its executives". If the total number cannot be determined (e.g., if the appellant is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99.