(dissenting) .
I agree with the Court’s statement of the governing legal principle that duty of search arises when there is a reasonable possibility of rescue. I agree also that if the duty is neglected and the seaman is lost, the burden ought not to be upon his representative to establish the fact that he was alive and would have been saved by a reasonable rescue effort. I respectfully disagree, however, with the Court’s resolution of the factual issue, for the finding below that there was no reasonable possibility of rescue is amply supported by evidence. Since Mc-Allister v. United States,1 it is plain that this Court has no power to try the factual issues de novo, or to substitute its appraisal of the facts for that of the District Court when the District Court’s *289findings are not clearly erroneous. We, of course, exceed our appellate powers when we consider findings made by the District Court in disregard of their evi-dentiary basis or without sufficient regard for the evidence upon which the findings were predicated.
Gardner had been ill. He had missed his preceding watch on that account and was contemplating hospitalization. He was last seen at approximately 1800 in the evening going in the direction of his quarters. The next day footprints were observed on a beam immediately beneath the port in the head just aft of the forecastle in which Gardner was quartered.
At the time, in early December 1958, the Bulkerude was southbound through the Florida Straits. She was off Tennessee Reef when Gardner was last seen. When Gardner was first missed, approximately five and one-half hours later, the ship had made good eighty-five miles, and, by the time the search of the ship was completed, the Bulkerude was approximately one hundred and five miles from Tennessee Reef. The weather was clear and the sea calm, but the night was dark and moonless. There was testimony of great danger of one going over the side of a vessel being sucked into the propeller, particularly when the ship is in ballast and riding high as the Bulk-crude was. There was also testimony of danger to one who might avoid the hazard of the propeller from sharks and barracuda. Of even greater importance, there was abundant testimony that the currents over the Bulkcrude’s track that night sometimes set in toward the Florida Keys, sometimes out from the Keys. This is readily apparent from the plot of the vessel’s track, and all witnesses agreed that, to compute the drift of a floating body in the water, one would require knowledge of the place along the track at which the body entered the water. Without knowing where Gardner went overboard, there was no way to determine whether his drift would be inshore or offshore.
Under these circumstances, several masters, testifying for the respondent, expressed the opinion that there was no reasonable possibility of rescue. Each of those witnesses testified that, under the circumstances, he would not have turned the ship about had he been in the position of the Bulkcrude’s Master. Those witnesses, the Bulkcrude’s Master and the Bulkcrude’s Mate, all testified that, without more specific information than that Gardner went overboard at sometime between 1800 and 2330, there was no way to tell where to go to look for him, and that unless one knew within reasonable limits where to search, any search would be futile.2 Moreover, one of the libelant’s two witnesses, the Chief of the Search and Rescue Section of the Fifth Coast Guard District, testified that it was “almost impossible” to . see a man in the water at night, unless the man in the water was equipped with flares or other special signaling equipment. He further testified that had he been on duty in Miami, he would not have launched a Coast Guard search that night, and if he launched one the next day, it would not have been very extensive because of the circumstances and the wide expanse of water to be covered.
The Coast Guard Chief Warrant Officer on duty in Miami, who received the Bulkcrude’s message early on the morning of December 9, testified that he initiated no rescue effort because, in his opinion, rescue was impossible. He said there was such uncertainty as to the time and place where Gardner went overboard that any search that night or the next day was impractical. Even if he had known where Gardner went overboard, he would not have launched a Coast Guard search during the hours of darkness, but would have sent a plane after sunrise. Not knowing where to send the plane, however, none was sent. He *290did send a series of All Ships Broadcasts notifying other shipping in the Straits to be on the lookout for Gardner. Further steps he thought were futile and impractical, and no further steps were taken.
It is apparent that none of these witnesses assumed that Gardner went overboard soon after he was last seen at approximately 1800. Their difficulty arose out of the fact they had no basis for assuming when between 1800 and 2330 he went overboard, and it was on that account that they all agreed that the Master of the Bulkcrude had no basis for deciding where to look for Gardner. There was also general agreement among these witnesses that because of the cross currents and the darkness of the night, there was little or no point in the Bulkcrude reversing her course and proceeding back along her own track. Only one witness, one of the two offered by the libelant, was of the opinion that had the ship been turned on a reciprocal course there was a reasonable possibility that Gardner, if alive and “wiggling in the water,” might have been sighted and rescued.
As noted by the majority, several of these witnesses indicated that they would have undertaken some search if they had known that Gardner went overboard shortly before he was missed, for, in that event, they could pinpoint the area of search. With that information, they could determine the ship’s approximate location at the time he went overboard, they could compute Gardner’s drift, and the ship could proceed to the place where Gardner could be expected to be found, if, indeed, he had survived the other hazards and was still afloat and alive. There was no agreement among the witnesses, as the majority indicates, that without such information some search in a limited area and time should have been or would have been undertaken. On the contrary, all of the respondent’s witnesses and one of the two witnesses for the li-belant agreed that a search and rescue effort was hopeless under the circumstances which confronted the Bulkcrude’s Master that night in the light of the darkness of the night and of the fact that he had no basis for a determination of a search area.
It is true that the District Judge at one point in his opinion said it was more likely that Gardner went overboard shortly after he was last seen at approximately 1800 than at some later time, but earlier in his opinion he recognized that the real problem confronting the Master was the absence of any basis for any rational assumption as to when and where Gardner went overboard. If fault might be found with that later speculation, it was not a general assumption that Gardner went overboard shortly after 1800, and it does not defeat the District Court's expressed recognition of the fact that the real and insolvable problem confronting the Master was the fact that nothing was known as to when, during the five and one-half hour period, and where, during the eighty-five miles of travel, Gardner went overboard. If, however, that speculation might be said to have infected the general findings of the District Court, this Court would not be justified in making its own findings in disregard of other specific findings of the District Court, particularly when the District Court’s findings are not only not clearly erroneous, but are supported by the great weight of the testimony.
I think we exceed the permissible bounds of appellate review when we disregard the abundant testimony supporting the finding that there was no reasonable possibility of rescue of Gardner, or we violate the substantive principle we profess to apply when we insist that there was a reasonable possibility of rescue in the face of the contrary finding below and the abundant evidence which supports it.
I think this case presents only a factual question which was foreclosed by the District Court’s findings.
. 348 U.S. 19, 75 S.Ct. 6, 99 L.Ed. 20.
. There is no doubt but that the Master, by questioning all members of the ship’s company, did everything he could to obtain more definite information as to when and where Gardner went overboard.