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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.

feeding methods among

feeding methods among aquatic vertebrates.” To fuel the intense energetic demand of maintaining and operating a huge body at high speed, fin whales must consume more than a ton of krill every day. Fin whales can maintain high speeds over large distances when traveling between areas with large concentrations of prey. A whale Panigada tagged in March 2015 swam from Lampedusa to the northern tip of Corsica, traversing the Mediterranean from south to north in five days. It averaged more than 100 miles per day while crossing some of the world’s busiest shipping lanes. A second whale tagged the same day made a similar migration, confirming that the same whales feed seasonally on both sides of the Mediterranean. “The fog surrounding our understanding of finwhale movements in the Mediterranean seems to be lifting to some extent,” Notarbartolo di Sciara said. The dramatic results were more cause for concern than celebration, however. Ship strikes are the leading known cause of death in fin whales, and these whales swim close to the surface and come up to breathe regularly while migrating. The confirmation of the Lampedusa area as an important feeding ground is also of concern due to the “exponential growth of fishing effort” in the region, according to the report Panigada and his colleagues submitted to the International Whaling Commission. Fin whales are classified as endangered worldwide. Commercial whaling has never targeted the Mediterranean fin-whale population, but ship strikes, fishery interactions, chemical pollution, sound pollution and disturbance by whalewatching operations are all significant threats. The Mediterranean fin whales constitute a genetically distinct subpopulation that has been isolated from the North Atlantic population for 200,000 years. The Mediterranean whales rarely leave the Mediterranean except for short forays into the Atlantic just beyond the Strait of Gibraltar. Researchers can distinguish Mediterranean and Atlantic whales by the unique characteristics of their calls. After a long campaign by the Tethys Research Institute, Italy, France and Monaco created the Pelagos Sanctuary for Mediterranean Marine Mammals in 2002, making it the world’s first marine protected area (MPA) that is international and the first that is mostly in pelagic waters. The sanctuary covers almost 34,000 square miles, stretching from just offshore of the French and Italian Riviera almost to the northern coast of DOUG PERRINE ALESSIA SCUDERI / TETHYS RESEARCH INSTITUTE SIMONE PANIGADA / TETHYS RESEARCH INSTITUTE DOUG PERRINE DOUG PERRINE From top: Viridiana Jimenez-Moratalla Pelhate of the Tethys Research Institute and Capt. Roberto Raineri of the R/V Pelagos prepare to deploy a plankton sampling net in the Pelagos Sanctuary. Krill are the primary food for fin whales. A giant devil ray performs an aerial maneuver in the Pelagos Sanctuary. Longfin pilot whales swim in the Strait of Gibraltar. Nino Pierantonio of the Tethys Research Institute studies acoustic data from a towed hydrophone array aboard the R/V Pelagos during a research cruise. 80 | SPRING 2016

Corsica. It includes territorial waters of all three nations, but much of it is in international waters or areas beyond national jurisdiction (ABNJ). With the Pelagos Sanctuary as an example, the United Nations has created a process to establish additional MPAs in ABNJ, which cover 40 percent of the earth’s surface. Marine mammals found within sanctuary waters include fin whales, sperm whales, Cuvier’s beaked whales, long-finned pilot whales, striped dolphins, shortbeaked common dolphins, common bottlenose dolphins and Risso’s dolphins. Fin whales and striped dolphins are the most abundant. Sperm whales in the Mediterranean, like fin whales, constitute a distinct subpopulation characterized by a unique vocal repertoire (and possibly a smaller body size). Unlike male Atlantic sperm whales, which make enormous migrations between highlatitude feeding areas and low-latitude breeding areas, Mediterranean sperm whales are believed to spend their lives within the Mediterranean. Scientists did not recognize the abundance of whales in this region until Notarbartolo di Sciara began studying cetaceans there in the late 1980s. Many divers, however, still believe “the Med is dead.” “That’s not true,” said Sylvan Oehen, a member of the Tethys Cetacean Sanctuary Research team. “The Mediterranean is overfished for some species, but the primary productivity is still there, and it supports a lot of life.” Photographer Danny Kessler was surprised and intrigued when he learned about the Tethys research while on a family vacation in Sardinia. He had assumed that the clear blue waters of the Mediterranean indicated a sterile environment, not realizing that ocean giants were diving deep to utilize food resources hundreds or thousands of feet below the surface. He was also amazed when Cetacean Sanctuary Research director Sabina Airoldi showed him maps of seasonal upwellings, and he learned that the fleet-finned fin whales could dash hundreds of miles to get from one temporarily productive area to another. Numbers of fin whales in the sanctuary have been declining in recent years, but this may simply reflect movement out of the Ligurian Sea into other parts of the Mediterranean. Sperm whale numbers, however, appear to be increasing within the sanctuary. Similarly, common dolphin numbers have crashed, but striped dolphins are abundant. Overfishing of the primary prey species of common dolphins is suspected in their decline. Striped dolphins eat a much wider variety of prey and are thus able to prosper. Risso’s dolphin populations have declined since 2005, with abundance estimates in 2012 and 2013 only half of the average. Risso’s dolphins and Cuvier’s beaked whales feed primarily on squid, but Tethys’ studies showed that the two species were using entirely different habitats. Almost nothing was known about Cuvier’s whales in the Mediterranean before Tethys began its research in 1999, collaborating with other researchers to describe a resident population of about 100 of these rare animals feeding in a deep canyon region off Genoa. Long-finned pilot whales, once commonly found in large pods, are now rarely seen in the sanctuary. The researchers are particularly excited when they encounter a pod, not just for the opportunity to add points to the database, but also because these whales are much friendlier than most cetaceans in the area and than pilot whales in most other parts of the world. Tethys researchers have also been involved in research seeking to manage severe threats to bottlenose-dolphin populations in the nearby Adriatic and Ionian seas. While marine mammals continue to be its primary focus, Tethys is involved in research concerning a wide variety of species. A collaborative study with the University of Salento is looking at the increasing abundance of sea jellies in the Mediterranean and the resulting ecological, social and economic consequences. A study of giant devil rays (Mobula mobular) provided the first estimates of their abundance in the northwestern Mediterranean, and this work is continuing with Palestinian partners to show the effects of a fishery for the species off Gaza. These studies in collaboration with the Italian National Institute for Environmental Protection and Research and the International Whaling Commission are funded by the Italian Ministry of the Environment and use aerial surveys to census the rays and cetaceans as well as loggerhead turtles, bluefin tuna and swordfish. Marine animals here as elsewhere face a variety of threats, but the unique international structure of the sanctuary poses great challenges to enacting regulations to manage those threats. Thus, Tethys works with user groups such as ferry operators, whale-watching companies and fishermen to try to mitigate the threats. Most important, the organization continues its research to enhance our knowledge of these species’ biological needs and of how they are being affected by a changing marine environment. AD GET INVOLVED Every summer Tethys opens research cruises to volunteers who both assist with the research and help cover the cost of the expeditions. For more information, see ALERTDIVER.COM | 81

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