This action was brought upon the defendant’s common-law liability as a common carrier for a loss sustained by the plaintiff’s assignor on merchandise destroyed by fire while in the possession of the carrier. There have been two trials of the action. On the first trial judgment was rendered in favor of the defendant, but on an appeal to this court that judgment was reversed and a new trial was ordered. (Robinson v. N. Y. & Texas S. S. Co., 63 App. Div. 211.) The second trial, which was before the court without a jury, *432resulted in a judgment in favor of the plaintiff, and from that judgment this appeal is taken.
It appears that the Slater Woolen Company of Massachusetts, the plaintiff’s assignor, was the owner of two lots of cotton which were shipped from Texas; one lot at St. Angelo, by the Gulf, Colorado and Santa Fe Railway Company,-and the other lot at Walnut Springs by the Texas Central Railroad Company.- -The Texas Central railroad carried the lot shipped by it as far as Morgan, Tex., when it delivered it to the Gulf, Colorado and Santa Fe Railway Company, and both lots were delivered by the last-named company to the defendant'at its wharf in the city of Galveston. When each lot of goods was delivered to the initial carrier a bill of lading was issued by that carrier, but when the Walnut Springs shipment was turned over to the Gulf, Colorado and Santa Fe Railway Company at Morgan, no new bill of lading was issued, nor was any bill of lading issued when both shipments were transferred to the possession of the defendant.
The defendant claimed that it was exempt from liability by the provisions of the two bills of lading issued by the railroad companies ; that each of those bills was a through bill covering the merchandise at the time of its destruction by fire. When the case was before us on the former appeal, it was held that the bill of lading issued by the Gulf, Colorado and Santa Fe Railway Company was not to be construed as a through bill of lading; that within the terms of that bill the contract of carriage made by the railroad company ended with the delivery of the goods at Galveston; that the defendant as a connecting carrier was not entitled to- any exemptions contained in that bill of lading, and when the defendant received the goods and receipted for them, it did ' so as a common carrier; that its liability as such immediately attached and that for the loss of the goods thus received the defendant was clearly liable. Nothing was shown on the trial how under review ydnch changes the relations of the parties in any way so far as this bill of lading is concerned, and indeed it is admitted by the defendant (appellant) that our former decision is conclusive upon that branch of the case.
But with respect to the Walnut Springs bill of lading, we held on the former appeal that it was a through bill and that the defendant would be entitled to the protection of any exemption of liability *433within its provisions. In construing that bill we proceeded to say that there was contained in it no express exemption in terms from loss sustained by fire; that the defendant claimed exemption, however, by virtue of the following clause in the bill: “ It is further stipulated that in the event of the articles herein named being conveyed by water transportation en route to destination, they shall be subject to all customary conditions of same.” We assumed on the former appeal that effect might be given- to the clause quoted, although its language was quite general in character and extremely uncertain in meaning. It is now seriously argued by the respondent, as it was before, that the whole clause should be rejected because of its uncertainty, but we do not deem it necessary to decide that point. It is sufficient to consider what the appellant’s contention is respecting that clause, and whether that contention is supported by the proof which was adduced at the second trial. The claim substantially is that there was a well-established usage and custom, generally known, that in contracts for the transporta-, tion of goods by water, exemptions are always inserted covering losses sustained by fife, and that as a consequence this Walnut Springs bill of lading is to be construed as though it contained in terms such an exemption. That is the same construction we were asked to give to this bill of lading on the former appeal, and it was then claimed that there was proof to show a general usage and custom exempting water carriers from the common-law liability, and that it was of such a character that it had acquired the force of law • •or required that the contract of the parties should be considered as if it expressly provided for such exemption. We held upon the record as it then appeared that there was no such proof, and we are •obliged to hold the same with reference to the evidence as it appears in the record now before us. Unless the exemption arises under the terms of the bill of lading, or a reasonable, uniform, well-established usage engrafted upon it, we do not doubt that the defendant’s common-law liability attached to the goods received by it under the Walnut Springs bill of lading, and, as we observed on the former appeal, the proof establishing usage and custom to incorporate an -exemption from liability for fire upon the part of the carrier must .be clear, cogent and convincing.
Looking at the terms of the Walnut Springs bill of lading, we *434find that the phrase used is, that if the articles are conveyed by water transportation^ they shall be subject to all customary conditions of water transportation. If an usage were to be proven that were to control in this case, the defendant would be required to-show that, as a rule, goods carried by water .transportation were-subject to conditions. But it distinctly appears in evidence in this case that goods which the defendant received from railroads were carried without the issuance of any marine bill of lading, and, as the respondent’s counsel well puts it, a large part, ■ if not the greater part, of the defendant’s business was transacted without any right to an exemption from its common-law liability as a carrier, except, as might be found in the various railroad bills, and not to those •unless the railroad bills were through bills. The through bills issued by the different railroads delivering goods ■ to the defendant were not uniform in stipulating for exemptions from liability, nor was there shown to be uniformity of stipulation exempting from loss by fire contained in such bills. The Walnut Springs bill contained no such exemption, and it does not appear, nor is it claimed by the defendant, that such exemption was contained in the bills issued by other roads. On the contrary, it is shown that one of the-defendant’s witnesses, Mr. GuillaUdeu of the Old Dominion line, was engaged in an attempt to agree upon a bill of lading containing uniform exemptions from liability, but up to this time no agreement had been reached. As the defendant took goods from all connecting railroads and issued no bills of lading therefor, it is manifest that there could be no customary usage which exempted from loss by fire in all cases of carriage, as some of the bills contained no such exemption, and as to these there was no variation of the common-law liability of the carrier. The defendant received and carried such goods without regard to exemption from fire, and has received and continues to receive goods from all railroads, indifferently,, whether the bills contain such exemptions or not. It is evident,, therefore, that the words “ customary conditions ” contained in this bill cannot be said to stipulate for exemption in case of loss by fire.
The judgment appealed from should be affirmed, with costs.
Van Brunt, P. J., Ingraham, Hatch and Laughlin, JJ.¡> concurred.
Judgment affirmed, with costs.