This is an appeal by defendant from an order granting plaintiff’s motion for a new trial.

The action was to recover the value of certain lumber received by defendant to be transported by defendant’s barge, under tow by steamer, from the bay of San Francisco to the city of Stockton. The lumber was in the schooner “Georgina,” lying off the shore of the bay. Defendant moored its barge “Era” alongside of the schooner and defendant had received on board the “Era” about two hundred thousand feet of lumber when the barge parted from the schooner, and a loss of one hundred and thirty-eight thousand feet, valued at $2,723.26, resulted, and hence this action.

That defendant was a common carrier, and as such had agreed to carry the lumber from the schooner “Georgina” to its point of destination, appears without conflict, and nothing in the agreement appeared which changed its liability as a common carrier as defined by section 2194 of the Civil Code. The agreement was oral by which defendant agreed to deliver the lumber at Stockton for a stated compensation, but no bill of lading was issued. The considerations which moved the learned trial judge to grant the new trial are clearly stated by himself, and we quote from his written opinion found in respondent’s brief. A very satisfactory conception of the points in the case will also thus appear:

As the case must go back for a new trial, it may be proper to notice one or two errors assigned by respondent, which, it is claimed, should call for a new trial.

Over plaintiff’s objection, evidence was admitted as to a custom or usage existing at the bay of San Francisco in regard to the lashing of barges to discharging vessels and in regard to leaving barges while receiving cargo from such vessels without a watchman on board. This evidence was offered to relieve defendant from implied negligence for failure in these regards. Evidence may be given of the following facts: “Usage, to explain the true character of an act, contract or instrument, where such true character is not otherwise plain; but usage is never admissible, except as an instrument of interpretation.” (Code Civ. Proe., sec. 1870, subd. 12.) In Burns v. Senneit, 99 Cal. 363 , [ 33 Pac. 916 ], it was held that “usage cannot be given in evidence to relieve a party from his express stipulation, or to vary a contract certain in its terms.” (See cases to the point cited in Leonhart v. California Wine Assn., 4 Cal. App. 19 , [ 89 Pac. 847]; Ames v. Southern Pacific Co., 141 Cal. 728 , [ 99 Am. St. Rep. 98 , 75 Pac. 310 ]; Hale Bros. v. Milliken, 5 Cal. App. 344 , [ 90 Pac. 365 ].) As shown in the opinion of the trial judge, plaintiff, under the contract, had nothing to do either with the acts of the crew of the barge or schooner or with the manner in which the barge might be secured to the schooner, or the way in which lumber should be taken from one to the other, or the manner in which the defendant herein should discharge its duty as a common carrier. Such being the contract, the usage allowed to be proven was immaterial and might have been prejudicial. The contract was simple, express in its stipulations and certain in its terms.

There were certain instructions given to which plaintiff objected, which seem not to be consistent with the view of the case expressed by the trial judge in the opinion filed by him. These instructions apparently attached undue significance to the conduct of the “Georgina’s” crew as a contributing cause of the damage to plaintiff. The jury' might have been led to believe that if the crew of the “Georgina” contributed to the loss, it would relieve the defendant. But the law is: “As between the carriers and the owners of goods, the negligence or misconduct of a third party will not excuse the former since a remedy lies over against the party so offending.” (Mershon v. Hobensack, 22 N. J. L. 372, 381.) It was said in Howe v. Oswego etc. Ry. Co., 56 Barb. 121 , 124: “The law holds the carrier responsible to the owner for all loss and damage of the property, intrusted to his care, whether it arise from his own negligence or that of his servants, or of third persons; or whether it be caused by the tortious acts of himself or of others, who are not public enemies; or whether it be by unavoidable accident, not caused by the act of God.”

The loss occurred after the lumber had been delivered to defendant on its barge. Nothing after delivery, not attributable to plaintiff, could relieve defendant of its liability except the happening of one or more of the causes specified in section 2194 of the Civil Code, and the negligence of some third party acting conjointly with defendant, in earing for the property, is not among these causes; even the larceny of the lumber would not relieve defendant (Schieffelin v. Harvey, 6 Johns. (N. Y.) 170, [ 5 Am. Dec. 206 ]); nor would its utter destruction by the elements, unless by “some irresistible superhuman cause.” Much less would the act of the crew of the “Georgina” in an honest though mistaken effort to save the barge which had been left by the defendant for the night without a watchman.

The order is affirmed.

Hart, J., and Burnett, J., concurred.