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This is the “not do” component. It is also somewhat harder to define. After all, who determines the duty to care and the non-compliance thereto in unique emergency situations? Still, this component is more likely to lead to a recovery of damages. Put differently, when you are under a legal duty to take reasonable care and you do not do it, then you could be held liable for damages that are directly caused by the breach of that duty. The key elements are “reasonable care” and “directly caused”. Let’s break that down, starting with directly caused. This means that the damages are linked directly to the failure to perform the reasonable duty. This is called a causal connection. In other words, there must be a connection between the duty not complied with and the damages. deep diving are so hazardous that it may well be better to only jeopardise the life of one individual rather than two. That is, of course, as long as no one is put at risk during the subsequent body recovery or rescue efforts! Well, as a qualified instructor and dive leader, I shall continue to teach and advocate the buddy system. I do not like the idea of diving alone anyway. I prefer to share the joys of diving with someone able to share the memories of the dive. To me, diving is, and remains, a team sport. Which introduces another consideration: How would the principle of duty to take care be applied to children who dive? Training agencies impose age and depth restrictions on children who enter the sport before the age of 14. Depending on the age and diving course, a child may be required to dive with an instructor or at least another adult dive buddy. If the adult were to get into trouble, the child would not be expected to meet the duty of care of another adult. He/she would be held to an age appropriate standard. What about all those waivers? As mentioned in the previous article, waivers define the boundaries of the self-imposed risk divers are willing to take by requiring that they acknowledge them. Waivers do not remove all the potential claims for negligence and non-compliance with a duty of care. As such, it is left to our courts to ultimately interpret the content of a waiver within the actual context of damage or injury.

This is the “not do” component. It is also somewhat harder to define. After all, who determines the duty to care and the non-compliance thereto in unique emergency situations? Still, this component is more likely to lead to a recovery of damages. Put differently, when you are under a legal duty to take reasonable care and you do not do it, then you could be held liable for damages that are directly caused by the breach of that duty. The key elements are “reasonable care” and “directly caused”. Let’s break that down, starting with directly caused. This means that the damages are linked directly to the failure to perform the reasonable duty. This is called a causal connection. In other words, there must be a connection between the duty not complied with and the damages.
deep diving are so hazardous that it may well be better to only jeopardise the life of one individual rather than two. That is, of course, as long as no one is put at risk during the subsequent body recovery or rescue efforts! Well, as a qualified instructor and dive leader, I shall continue to teach and advocate the buddy system. I do not like the idea of diving alone anyway. I prefer to share the joys of diving with someone able to share the memories of the dive. To me, diving is, and remains, a team sport. Which introduces another consideration: How would the principle of duty to take care be applied to children who dive? Training agencies impose age and depth restrictions on children who enter the sport before the age of 14. Depending on the age and diving course, a child may be required to dive with an instructor or at least another adult dive buddy. If the adult were to get into trouble, the child would not be expected to meet the duty of care of another adult. He/she would be held to an age appropriate standard. What about all those waivers? As mentioned in the previous article, waivers define the boundaries of the self-imposed risk divers are willing to take by requiring that they acknowledge them. Waivers do not remove all the potential claims for negligence and non-compliance with a duty of care. As such, it is left to our courts to ultimately interpret the content of a waiver within the actual context of damage or injury.

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LOCAL DIVING<br />

CAPE COD<br />

Clockwise from top left: A common snapping turtle, an apex predator in ponds and lakes; Cape<br />

Cod’s reefs are home to myriad small fish such as this sea robin; more than 3,000 shipwrecks<br />

are found around the cape; a graceful blue shark, one of the fastest sharks in the sea<br />

young summer flounder glides across the sand searching<br />

for small fish or crustaceans on which to feed. Schools<br />

of small mummichog and translucent silversides dart<br />

through a jungle of grass blades, avoiding deeper waters<br />

where predatory bluefish and striped bass patrol.<br />

Not far from the protected bays, the open ocean is<br />

alive with movement. It swells and subsides, endlessly<br />

rolling and rocking according to earthly, solar and<br />

lunar rhythms. Microscopic, one-celled diatoms and<br />

other phytoplankton invisible to the naked eye make<br />

these pelagic waters so fertile. The shallow photic zone<br />

of the North Atlantic is like a colossal farm, producing<br />

immeasurable quantities of phytoplankton. Stellwagen<br />

Bank and Georges Bank, where nutrient-rich waters<br />

blend with sunlight, are especially productive due to<br />

deepwater upwelling. The abundant plankton feeds<br />

larval crustaceans, mollusks and fish such as sand<br />

lances, which in turn attract larger predators.<br />

MAMMALS<br />

Some of the most extraordinary and rare mammals on<br />

Earth feed and raise young here. Humpback, fin, minke<br />

and North Atlantic right whales may travel thousands of<br />

miles to be off the cape during the spring and summer.<br />

Once there, they strain enormous quantities of plankton<br />

through their baleen, fattening themselves for their<br />

long migrations to distant breeding grounds where they<br />

spend the winter. In near-shore ocean waters, thousands<br />

of harbor and gray seals prosper. Their breeding<br />

colonies have grown rapidly in the past 43 years because<br />

of the Marine Mammal Protection Act of 1972, which<br />

made it illegal to hunt, kill, capture or harass any marine<br />

mammal in U.S. waters (with limited exceptions).<br />

SHARKS<br />

The return of seal populations has signaled another<br />

stirring comeback: that of the great white shark, one<br />

of the food web’s supreme carnivores. The stuff of<br />

legends and nightmares, white sharks appear during<br />

summer months to feed on the fat-rich meat of the<br />

abundant pinnipeds. Researchers have satellite-tagged<br />

more than 50 white sharks off the cape in the past few<br />

years to learn where they were coming from and where<br />

they went in the fall. It appears that the majority of<br />

these sharks migrate along the East Coast, following<br />

the continental shelf from Cape Cod in the summer<br />

and fall to an area between South Carolina and Florida<br />

for winter and spring. It is thought that larger, more<br />

mature white sharks probably exhibit different migratory<br />

behaviors and head for far-off breeding grounds.<br />

A variety of other elasmobranchs — including skates,<br />

torpedo rays, pesky dogfish, gigantic basking sharks,<br />

speedy makos, toothy sand tigers and others — inhabit<br />

Cape Cod’s cold waters. But arguably the most aesthetic<br />

species found offshore is the blue shark. These sleek<br />

and charismatic oceanic marauders prefer the edge of<br />

38 | FALL <strong>2015</strong>

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