b"LEGALThe operator objected to the as-even a deathrequires substanceWhat remains after this decision sessment for non-timely testing on thetesting. The threshold requirement thatis the long-discussed issue as to primary basis that there was, in fact,there be a nexus between the incidentwhether, by example, if a person no requirement for testing at allthatand a crewmembers actions is real.dancing on a vessel has a heart attack there was no crewmember directlyThere must be a showing that the crew- or broken leg, is any crew member involved in the incident. Proof wasmember was directly involved in thedirectly involved and thus required offered that the crew had given safetycausation of the incident as materialto undergo drug testing? Stay tuned, instructions before the incident, that theprerequisite to the requirement ofas PVA continues to probe clarity on passenger was well aware from priorsubstance abuse testing. The masterthese and other issues in defi ning the medical sources of the risks in engagingretains the obligation to make a goodrequirements of accident reporting, and in the activity given his elevated bloodfaith assessment. substance abuse testing.npressure, and that the passengers condition was unaltered from the time his condition was observed in the water.Under these circumstances, the Hearing Offi cer wrote, Upon review, Ido not fi nd that the crewmembers on board [the vessel] were directly involved in the SMIThe evidence supports that [the passengers]The European World Leader, condition was unchanged from theproudly serving America's nest !time he was found unresponsive in the water to when he was pronouncedReservations, Check-In, Port Automation, ePoSdeadBecause you as a marine employer determined that the crew-members were not directly involved in the SMI which was made based on the information you had available to you, I find that the decision . . . to continue on with the excursion [i.e., not to abandon the cruise to do immediate drug testing] was made in good faith as discussed in the regulations.The decision has some intriguing, and possibly significant implications as to when drug testing must occur. Certainly, the case does not allow the assumption that every marine accident About the Author Steven E. Bers, Esq., is Chairman of the Employment Law and Marine Law Sections of the law fi rm of Whiteford Taylor &We care about your CustomersPreston., Baltimore/ Worldwide, we serve over 33 million passengers, 5 million Washington, D.C. He has served as PVAs General Counsel,vehicles and over a million cargo units annually.advising passenger vessel owners in matters relating to marine andFrom whale watching to fine dining and from bay crossingsemployment matters for over 25 years.to ocean voyages; Carus has the answer. He may be contacted at 410.347.8724, or sbers@wtplaw.com. www.carus.comJANUARY/FEBRUARY 2020 FOGHORN 31"