The appellant steamship company is a Japanese corporation, and the owner of the steamship Saigon Maru, on which it agreed by charter party made with the appellee, a corporation of the state of Oregon, to carry from a port on the Columbia or Willamette river a full cargo of lumber, including a full deck load, to Bombay, India, and there deliver the same to parties to whom the appellee contracted to sell and deliver it. The other appellant is surety only. In pursuance of the terms of the charter party the steamship came to Portland, and there received from the appellee a full cargo of the lumber below deck, and 241,559 feet, board measure, on her deck, after which the captain of the ship refused to receive any more, on the ground that it would not be safe to do so.

The court below found and held that the ship could safely have taken on deck 308,441 additional feet of lumber, and for her failure to do so held her liable in rem for damages in the sum of $2,453.65, with interest at the rate of 6 per cent, per annum from August 2, 1917, for and on account of loss of profits suffered by the libelant by reason of *800 the ship’s failure to carry and deliver at Bombay the 308,441 additional feet of lumber, and in the further sum of $5,192.86 for and on account of the claim for damages made against' the libelant by the parties to whom the appellee had agreed to deliver the said additional 308,441 feet of lumber, with interest thereon at the rate of 6 per cent, per an-num from August 2, 1917, besides costs.

The record shows, and the trial court so found in effect, that the 308,441 additional feet of lumber mentioned had not been sawed by the mill company from which the appellee had engaged it, because of the refusal of the captain to receive upon the deck of the ship more than the 241,559 feet that he had already taken aboard.

[1] The primary question in the case, therefore, is whether in such circumstances the appellee ever acquired any lien on the ship, growing out of the 308,441 feet that the captain refused to receive and carry, in view of the facts relating thereto. The respective positions of the opposing proctors may be briefly stated:

On the part of the appellee the contention is that, by taking on board a portion of the cargo covered by the charter party, the ship thereby entered upon the performance of the contract, and that a maritime lien thereupon arose against her and in favor of the libelant, not only as respects the portion so actually-received, but also as respects the entire contemplated cargo; whereas the appellants insist that there can be no lien against or in favor of the ship as regards any portion of a contemplated cargo not actually placed on board, or in the custody of or under the control of the ship, and especially so in respect to such portion of the contemplated cargo as does not in fact exist. The proctors for the appellee concede that it is the settled law in this country that, where the contract remains wholly executory, the ship is not liable in rem for any breach of it; but they urge that where she partly executes the contract, as by taking on board a part of the cargo, as was done in-the present case, she thereby becomes-liable in rem for all breaches of the contract.

The learned judge of the court below sustained this position of the proctors for the appellee, citing in support of his ruling the cases of Scott v. The Ira Chaffee (D. C.) 2 Fed. 401 ; The Hermitage, 12 Fed. Cas. 27 , No. 6410; The Williams, 29 Fed. Cas. 1342 , No. 17, 710; The Director (D. C.) 26 Fed. 708 ; The Starlight (C. C.) 42 Fed. 167 ; The Oscoda (D. C.) 66 Fed. 347 ; The Helios (D. C.) 108 Fed. 270 ; The Oceano (D. C.) 148 Fed. 131 ; Wilson v. Peninsula Bark & Lumber Co., 188 Fed. 52 , 110 C. C. A. 190 .

The contention of the appellants that the cases so cited are not here applicable we think not well founded. On the contrary, the last case there cited, Wilson v. Peninsula Bark & Lumber Co., 188 Fed. 52 , 110 C. C. A. 190 , which is a decision by the Court of Appeals of the Sixth Circuit, while based upon a state statute — as appears from the record of that case, not, however, called to our attention until the petition for rehearing in the present case was filed—is, it seems to us, strikingly in point upon the question, urged by the appellants, that the 308,441 feet of lumber had not been sawed prevented the lien claimed by the appellee from attaching to the ship. In that case the court said:

The claim of the vessel there was that, when first called by the li-belant and notified that three loads of lumber were ready, it responded, and on arrival at Chassell found only a small portion of that amount ready, and because the libelant failed to furnish sufficient timber it was compelled to sail with a short cargo, and was therefore relieved from further performance under the charter. The court, however, held against that claim, and sustained the libel for damages, just as the court below did in the case now before us.

Originally ships were held liable in rem under contracts of affreightment which were purely executory, hut that rule was at an early day so modified in this country as to hold them so hound only after actually enfering upon the oerformance of the contract. The Ira Chaffee (D. C.) 2 Fed. 401 ; The Monte A. (D. C.) 12 Fed. 331 ; The J. F. Warner (D. C.) 22 Fed. 342 ; The Director (D. C.) 26 Fed. 708 ; The Starlight (C. C.) 42 Fed. 167 ; The Oscoda (D. C.) 66 Fed. 347 ; The Eugene (D. C.) 83 Fed. 222 ; Id., 87 Fed. 1001 , 31 C. C. A. 345 ; (decision by this court); The Oceano (D. C.) 148 Fed. 131 . See, also, The Margaretha, 167 Fed. 794 , 93 C. C. A. 184 ; Wilson et al. v. Peninsula Bark & Lum *802 ber Co., 188 Red. 52, 110 C. C. A. 190 ; The Helios (D. C.) 108 Fed. 270 .

The decision of the Circuit Court of Appeals of the First Circuit in the case of The S. L. Watson, and The Thomas P. Sheldon, 118 Fed. 945 , 55 C. C. A. 439 , is far from holding that a maritime lien does not lie against a ship for the breach of a contract, where she has entered upon the performance thereof and performed it only in part. That such is not the doctrine of that decision is very clearly shown by the statement made by the court ( 118 Fed. 953 , 55 C. C. A. 447 ) that it “might have reached the same conclusion by accepting that” of this court in the Eugene Case above cited.

In the Watson and Sheldon Cases the owner of the barges contracted that they should transport five cargoes of coal from Lambert’s Point, in Norfolk, Va., to Providence, R. I., at 80 cents per ton. It was stipulated that the barges should “take turns in loading, as customary,” and that in case coal was not ready to load them when they reported for cargo, within a reasonable time, the owners should have the option of loading on other coal, and returning next trip to load under the charter. One cargo was loaded on each of the barges, was transported and properly delivered, but neither barge took on any portion of the cargo for which a lien in rem was claimed against them. The court held that, so far as the three remaining cargoes were concerned, the contract was purely executory — saying:

[2] True it is that the Hen of the ship on the cargo for freight and expenses in- connection with its carriage, and the lien of the cargo on the ship for its safe carriage and delivery, are very generally recipro *803 cal; but in the nature of things such reciprocity does not and cannot exist in every case. This illustration of that fact is given by the ap-pellee :

Yet where a passenger takes passage on a vessel, and the vessel receives him on board arid commences the voyage, but fails to complete it, she is liable in rem for her failure. Obviously in such case such reciprocity does not exist, for there can be no lien on the passenger. The cases of The Eugene (D. C.) 83 Fed. 222 , and Stone et al. v. The Relampago, 23 Fed. Cas. 158 , No. 13,486, and other cases there mentioned, are illustrations.

We have given very careful consideration to the arguments and the evidence regarding the refusal of the ship to take on her deck the 308,-441 additional feet of lumber and carry it in accordance with her contract, and are of the opinion that we would not be justified in interfering with the finding and conclusion of the trial court respecting that matter. So, too, do we think we are concluded by the findings and conclusions of the learned judge upon the question of damages. To review the record upon the subject in detail would serve no useful purpose.

The judgment is affirmed.