This is an action in rem and in per-sonam for breach of .contract to furnish cargo for one of libelant’s vessels. On February 25, 1916, libelant and respondent entered into the following'written contract:

[1] As the court construes this contract, it fixed June as the time at which the Cacique should load the cargo of 6,200 tons agreed to be furnished by respondent. Libelant was at all times willing and eager to carry out the contract, while respondent was not willing to furnish more than 4,075 tons of the 6,200 tons contracted for, and on June 14th advised libelant that—

To this notification? libelant replied:

[2] On June 22d libelant informed respondent that delivery of freight was to begin on June 27th and be completed by June 29th. On June 27th, however, the Cacique was not ready to take on cargo, and could not have been made ready to do so. The contract did not permit *953 libelant arbitrarily to fix a date for the delivery of freight, but required only that freight “be delivered alongside the steamer at San Francisco as fast as vessel can load.”

[3-0] This action was commenced on June 27th, at which time there liad been no actual breach of the contract on the part of respondent for the reasons: (1) That the vessel was not at that time in condition to load; and (2) there were 1,100 pieces of respondent’s freight on the wharf, which libelant treated as having been delivered in part fulfillment o £ the contract, and notwithstanding the notice that delivery of freight should begin on June 27th, and be completed by June 29th, respondent was required by the contract to deliver only as fast as the vessel could load. As there was, therefore, no actual breach of the contract before the filing of the libel, which, indeed, was filed before performance w as due, the action, if maintainable at all, can only be maintained upon the theory that there was an anticipatory breach committed by respondent when it notified libelant that it would furnish only 4,075 tons of freight, and insisted that the amount so furnished should not be held by libelant for the 6,200 tons contracted for.

There is, of course, no doubt that an action may be maintained for a breach of contract upon a distinct notification by one of the parties that he will not perform an executory contract such as this, even though performance he not due at the time of such notification, the notification being regarded as an anticipatory breach; but the party aggrieved by such anticipatory breach may not thereafter accept a part performance under the contract, and still maintain his action upon such anticipatory breach, and before performance is due. In the instant case, by filing its libel in rem against the .1,100 pieces of freight on the pier, libelant, despite its present protests, elected to accept such 1,100 pieces as part performance of the original contract. It could have no action in rem against them, unless delivered and received as freight under the contract. As bearing upon this proposition the testimony of Mr. Carter, libelant’s manager, who had charge of the transaction, is of interest.

While it is true that respondent endeavored to have this freight retaken into possession by the railroad company that had delivered it, yet *954 this fact is not very material, in view of the action of libelant, as disclosed by the above testimony and by the course pursued by it in proceeding against the packages in rem as against freight in its possession as such. We have, then, an action for breach of contract commenced before performance was due, based upon a claimed repudiation of the contract, but which repudiation was not accepted by libelant as such, because it held 1,100. packages as freight delivered in pursuance to the contract after such repudiation, and proceeded to foreclose a maritime lien against it as such in the very action based upon such repudiation. But if we regard the letters and conduct of respondent as a repudiation of the contract, libelant could only maintain an action thereon by accepting them as such. It could not for one purpose hold the contract as broken, and for another regard it as in process of being performed. It could not, before performance was due, maintain an action as for an anticipatory breach of the contract, and in the action itself proceed m rem against freight that could not be held as such, unless delivered under and in part performance of the same contract. It is true that in the admiralty an action will sometimes be sustained, even though prematurely brought, where there is some good reason for doing so. But where, as here, performance was not due at the time the action was commenced, where performance of at least a substantial portion of the contract was offered by respondent, and where there is a very grave question as to whether libelant itself was or would be in a position to carry out its portion of the contract, however willing to do so, I do not think that justice requires, or indeed will permit, the maintenance of the action upon an anticipatory breach, unless, when the libel was filed, such breach would sustain it.

During the argument of the case the following colloquy occurred between the court and libelant’s counsel:

At the time the libel was filed the breach relied upon could not support an action, for the reasons hereinbefore stated. At that time the libelant had suffered no injury, and respondent was still entitled to perform its agreement. Whatever rights may have later accrued to libel-ant, or whatever injury, if any, it may have later suffered, when this action was commenced it was still uninjured, and for this reason the present libel must be dismissed.