Nothing is easy, right? Maybe the new hire just got popped for a DUI or maybe after the third trip up from the engine room, through the galley, over the rail and to the truck, you're trying to spin SAE with metric. I've huffed Marlboros wearing overalls and lawyered wearing suits and it's all the same head seas making it important to consider potential pratfalls. Don't worry about Der Rumsfeld's "unknown, unknowns" and instead focus on reasonable possibilities and how you might respond. One of these possibilities is a serious marine casualty occurring on a holiday. How in heck are you going to get your folks timely drug-tested? Will the Coast Guard help us? Can I get an extension of time?
Your office and its admiralty attorney should develop its own answers to these questions, but I'll share some general thoughts. First, thumb wear the section of the Code of Federal Regulations ("CFR") speaking to the requirements for alcohol and drug testing following a serious marine incident (46 C.F.R. 4.06-3). With some exceptions, drug testing must be conducted within 32 hours of the occurrence of the incident. While that may seem like plenty of time, transit times and how hours get burned up following a casualty, can have you suddenly realizing you're down to the wire.
My experience is you can't roll into just any drug testing facility and that it has to be an 'approved facility.' While I've heard of local Coast Guard stations volunteering a list of 'approved' locations, I haven't heard of any of the Coasties offering a lift. That means if you or your crew are dripping seawater in the Coast Guard station's lounge with the clock ticking, you're likely going to have to muster your own transportation. Plus, experience shows that not every facility is going to be open on a holiday or late night or when you need them. Prudence dictates that you spend some time conjuring up casualty scenarios and checking to make sure you know and understand your options for obtaining drug testing.
"So what, you miss the drug testing window" the desk-jockey corporate type mumbles aloud. Missing the testing window may impose some hefty daily monetary penalties, may give rise to additional (and bad) Coast Guard action and may create problems in any downstream civil litigation. While you should talk to your maritime counsel, my thought would be to document every effort made to get a timely drug test. Give the particular CFR a read again too, because it seems there's the potential for the drug test being treated as timely if there were "safety concerns directly related" to the serious marine incident which prevented the test from being accomplished within 32 hours.
Don't get hung up on this one example. Hopefully it'll spark some thinking about the things that can go bump in the night and how best to prepare for them.
This article is provided for your general information, is not legal opinion and should not be relied upon. Always seek legal counsel to understand your rights and remedies.
Underway and making way.
John K. Fulweiler, Esq. is a Proctor-in-Admiralty representing individuals and small businesses in maritime matters including personal injury claims throughout the East and Gulf Coasts and with his office in Newport, Rhode Island. He can be reached at 1-800-383-MAYDAY (6293) or visit his website at www.saltwaterlaw.com.
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