## Facts

- National Marine Service, Inc. (NMS) contracted with St. Louis Ship to design and build tank barges, including the NMS 1950, intended to unload cargo through valve manipulation that would route cargo to forward tanks for pumping.
- The NMS 1950 was improperly designed so that it trimmed aft rather than forward, causing cargo to flow toward the stern and creating repeated “down by the stern” incidents.
- NMS continued operating the barge despite knowledge of the trimming problem.
- On August 31, 1979, the NMS 1950, carrying 1,920 short liquid tons of concentrated sulfuric acid, was unloaded by Petroleum Service Corporation (PSC) at Kaiser Aluminum’s dock on the Mississippi River in Gramercy, Louisiana.
- During unloading the barge became severely down by the stern and sank, destroying the barge and resulting in stipulated hull damages of $735,000 plus loss of the cargo.
- NMS sued PSC under general maritime law in strict products liability; PSC impleaded Kaiser and St. Louis Ship.
- PSC asserted assumption of risk, alleging NMS knowingly continued using a barge with a known defect.

## Issues

1. Under federal maritime law, whether assumption of risk remains a separate, complete defense barring recovery in a strict products-liability action.
2. Whether assumption of risk is instead subsumed within comparative fault, permitting apportionment rather than total defeat of recovery.

## Decision

- The Fifth Circuit reversed the judgment that barred NMS’s claim on assumption-of-risk grounds and remanded.
- The court held that assumption of risk is not an independent, absolute bar in maritime strict products-liability cases.
- The court required that the plaintiff’s knowing exposure to risk be evaluated under comparative fault principles, with damages apportioned according to relative responsibility.

## Legal Principles

- Comparative fault governs maritime products-liability actions, including strict liability.
- Assumption of risk is subsumed within comparative fault in maritime strict products-liability cases and does not operate as a categorical bar to recovery.
- Plaintiff conduct that contributes to the loss—including knowing use of a defective product—is considered in allocating fault and reducing damages proportionally.

## Conclusion

The Fifth Circuit held that in maritime strict products liability, assumption of risk is treated as comparative fault, requiring allocation of responsibility and proportional reduction of damages rather than complete denial of recovery.


National Marine Serv., Inc. v. Petroleum Serv. Corp., 736 F.2d 272 (5th Cir. 1984)