8 months ago

AD 2016 Q2

As we pointed out in the spring 2013 edition of the Alert Diver, even being a dive buddy has potential legal implications. So, to bump this up a notch, what about the diver training organisations themselves? Where do they stand? How do they relate to South African law? Are they all considered the same under our legal system in spite of the differences in organisational structures and training programmes? How does this affect their respective instructors and trainee divers from a legal perspective? These are not exactly simple questions. It is certainly true that the respective training organisations differ in a number of ways. However, this does not imply that there are necessarily differential legal implications for each of them. In fact, under South African law, the legal principles are common in all matters. Therefore, if you suffer a loss and you (or your estate in the case of a fatality) wish to recover damages, the legal principles would be applied commonly; whether you are driving or diving. Although not a frequent occurrence, there have been quite a number of law suits associated with diving injuries and damages in South Africa. This is not surprising, as the occurrence of law suits is really a function of “numbers”. As training increases, so do the chances of injuries and, with it, the chances of legal recourse. So, it remains wise to insure yourself, your equipment or your business in a proper and effective way. But before getting back to the potential differences amongst the training agencies, let’s first explore the foundational legal principles on which any civil claim would be adjudicated: inherent risk, negligence and duty to take care.


LIFE AQUATIC POLAR BEARS straightened her front legs and used them like a hammer to smash through the thick ice. Her rear legs went up in the air as her body plunged through the ice. Seconds later she was buoyed up in a big gush of water, holding a seal tightly in her powerful jaws. The circle of life was complete. The seal would provide the nutrition for the bear and her cubs, and, thanks to Einar, we were there as silent witnesses. My obsession with polar bears likewise led me to the water. Eleven years ago I went in search of a diving adventure in the High Arctic, eager for an opportunity to dive with a polar bear. Upon spotting a bear, I planned to hang motionless in the frigid water at 30 feet, along with a safety diver, and wait for the bear to come toward us. At least that’s how I thought it might work out. Instead, I entered the water to find the bear was already making its way toward me. Looking behind me for my safety diver, I discovered he was not there. Smart of him! When I turned back, the bear was only 10 feet away from me. At that point, my best move seemed to be to descend, but every time I looked up, the bear paws above my head loomed nearer. Cold fear entered my mind, but with each breath I took comfort in knowing I still lived. We dived together, the bear and me, in a deadly race to the depths. I equalized as well as I could and purged all the air from my drysuit. A quick glance at my gauge told me I was at 80 feet, and that’s when the bear finally leveled off and began to ascend. I would survive to try to photograph a polar bear underwater another day, but the experience was terrifying. Back on the boat I discovered my safety diver had an equipment malfunction and had to abort. Would the polar bear have been so aggressive with two divers in the water? I’ll never know. In August 2015 I finally had a chance to redeem myself with another attempt at the underwater polar bear encounter of my fantasies. As luck would have it, a brilliant photographer and filmmaker from Israel, Yonatan Nir, had decided to produce a movie about my life and career in the company of ocean giants. He was aware of how important it was to me to get that underwater polar bear photo, for there are few such images in the world, and I had yet to get mine. We trekked back to the High Arctic accompanied by remarkably talented Arctic filmmaker and longtime friend Adam Ravetch and his team of Inuit guides. We were finally able to set out to sea on the third day of our expedition; the first two days had been far too windy to safely be out in our boat. Our quest was to document a mother and her cubs swimming. We saw a single bear at first, but I passed on that There is very little conventional wisdom about how polar bears will interact with scuba divers because few have actually dived with them.Based on at least one of the encounters Nachoum has had, considerable caution is prudent. option, thinking of my previous misadventure. A few hours later we spotted a female and her two one-year-old cubs climbing onto a small island. Our guides expected them to traverse the island and swim to the mainland. By the time we motored around the island, the family of three was already in the water. We moved along slowly, 300 yards from the bears, trying to determine what direction they were headed. When it appeared their course was firmly set, Adam and I dressed for an in-water encounter, waiting until the last minute to splash to be sure we were in the bears’ path. We stayed in place, treading water on the surface. As long as we could see the bears and they could see us, all was well. We remained where we were, and the trio continued swimming in our direction. So far, so good. When the bear family got within 25 feet of us, we exchanged a thumbs-down signal and started our descent to 20 feet. We had 50-foot visibility and 40°F water (pretty good conditions, all things considered). During my slow descent I kept my eyes on the approaching bears, preparing to dive to safety if needed but hopeful to capture iconic images instead. Happily, the bear family swam peacefully over our heads. While Adam filmed and I photographed the passing bears, one of the cubs couldn’t resist diving down toward me for a closer look. It came within 3 feet, looked at me and left me in its wake to follow its mom and brother. I hovered in the water, transfixed by the realization of what had just, finally, happened to me. The pursuit of this image had been more about the quest than the photo. My sense of what an in-water encounter with polar bears could be had been recalibrated. My personal mythology of the polar bear had a new dimension. I found myself considering our mutual vulnerability and envisioned a world in which the future of polar bears, Inuit culture and the pristine wilderness of the High Arctic could survive — even flourish. AD 40 | SPRING 2016

RESEARCH EDUCATION MEDICINE A pod of beluga whales gathers in the relatively warm, shallow waters of Hudson Bay near Churchill, Manitoba, to give birth, molt and feed on capelin before heading back to the Arctic. ELLEN CUYLAERTS 42 DAN WAS THERE FOR ME / 44 ADVANCED DIVING / 48 EXPERT OPINIONS 52 SAFETY 101 / 54 FROM THE MEDICAL LINE 58 SKILLS IN ACTION / 60 INCIDENT INSIGHT ALERTDIVER.COM | 41

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