Frederic Aked Sellers was appointed a Judge of the King's Bench Division two months after John Morris, but, having specialised in commercial litigation while at the Bar, he sat in the Commercial Court sooner than his more generalist senior colleague. Morris and Sellers, the first two Commercial Court Judges appointed after the end of the Second World War, had much background in common. Like Morris, Sellers was Liverpool-born. His father was a shipowner, who ran a line of coastal vessels. After going to school in Wakefield and university in Liverpool, Sellers enlisted as a private in the King's (Liverpool) Regiment at the outbreak of the Great War. He rose through the ranks to become a Captain, the same rank as Morris, and, like Morris, he was awarded the Military Cross, which was then the next highest-ranking medal after the Victoria Cross.
But Sellers outdid Morris by winning two bars to his MC, meaning that he was effectively awarded the medal three times. His first decoration was in 1916, for connecting up telephone wires while under heavy fire and in spite of minor wounds. He was injured more seriously during the Battle of the Somme later in the same year, and was sent to the Isle of Wight to recover. After returning to his regiment, he won his second and third awards for reconnaissance missions conducted under fire in the later stages of the War. The third citation noted that his "cheerfulness and untiring energy" steadied and inspired the troops under his command. Back on the Somme battlefield during the Allied advances of the Hundred Days in the summer and autumn of 1918, he was gassed two months before the end of the War and eventually discharged from the army on medical grounds.
From the very beginning of Sellers' army career, he and his future wife, Grace Lillian Malin, wrote to one another regularly, generating a collection of over 1,700 letters, now held by the Imperial War Museum. Fred and Grace married in December 1917, while he was on ten days' leave, and later had five children, four sons and a daughter. The eldest son, Norman, became a barrister, and was a Circuit Judge in Preston for fifteen years in the 1970's and 80's
Returning to civilian life, Sellers was called to the Bar by Gray's Inn In 1919. In another parallel with Morris, he stayed close to his Liverpool roots by joining the Northern Circuit. But whereas Morris established a general common law practice of which a limited amount of commercial work was just one element, Sellers, to judge from his reported cases, concentrated on commercial litigation from the start. It was a natural choice, given his family background, and his father’s local business connections must have been useful as Sellers started out on his career. Through the 1920's and early 1930's, he made recurrent appearances in Lloyd's Law Reports in cases (usually with a Liverpool connection) involving bills of lading, charterparties, collisions at sea, negligent navigation and pilotage, and insurance. There was also a sprinkling of fatal accident and personal injuries claims, but these invariably involved industrial accidents on board ship or in docks and harbours.
One of the most prominent cases from Sellers' career as a junior barrister involved personal injuries in a rather different context. In Poland v Parr [1927] 1 KB 236, Arthur Hall, a Liverpool waggoner on his way home for lunch, thought he spotted the 12 year old plaintiff stealing a bag of sugar from one of his employer's vehicles. He struck out at the boy, who fell under the wheels, and was so badly injured that his left leg had to be amputated. Sellers persuaded the Judge of the Liverpool Passage Court that, since Hall was employed as a waggoner, not a security guard, he had not been acting in the course of his employment, and his employers were not liable for his tort. But he and his leader came unstuck on appeal before the mighty triumvirate of Bankes, Scrutton, and Atkin, who overturned the decision. The case was for many years cited as a leading authority on the scope of vicarious liability. Sellers did rather better on appeal in Cammell Laird v Manganese Bronze [1934] AC 402, an important authority on the implied fitness for purpose obligation under the Sale of Goods Act. When the defendant manufacturers supplied Sellers' shipbuilder clients with noisy propellers, Adair Roche held that they were in breach of the obligation. The Court of Appeal, taking a narrow view of the obligation, held that the shipbuilders had not sufficiently communicated any particular purpose for which they were buying the propellers, but the House of Lords, holding that the Act should be given a much liberal construction, restored Roche's decision.
To judge from the law reports, Sellers avoided criminal litigation altogether. He stood for Parliament as the Liberal candidate for the constituency of Waterloo, north of Liverpool, in the 1929 general election, but came third out of three candidates.
Sellers was appointed King's Counsel in 1935, at the same time as Morris. For the remainder of his career at the Bar, London, and particularly the Commercial Court and the Admiralty, was the focus of his practice. Over the next decade, Sellers appeared in close to a hundred reported cases, almost all commercial, though still with a sprinkling of shipping-related personal injuries and fatal accients actions.. Prominent among his cases as a KC were Larrinaga Steamship v The King [1945] AC 246, a leading decision on the scope of the concept of "employment" under time charters and on the test of proximate cause in civil cases, and Heyman v Darwins [1942] AC 365, which established that an arbitration clause in a contract survives if the contract is terminated for breach or by frustration, pointing the way to the modern doctrine that an arbitration clause constitutes a severable agreement.
These were among more than a dozen appeals which Sellers argued in the House of Lords, two of which arose out of the same maritime disaster. HMS 'Thetis', 275 feet long and with a surface displacement of 1,000 tons, was a T-Class submarine, built for the Royal Navy by Cammell Laird of Birkenhead just before the Second World War. On 1st June 1939, it sailed into Liverpool Bay for sea trials with one hundred and three men on board, a mix of crew and shipayard and subcontractor personnel. During the afternoon, the torpedo officer decided to open the inner doors of the 6 torpedo tubes for an inspection. When the inner door of No 5 tube was opened, water poured in, flooding the two forward compartments and sending the submarine to the bottom. The vessel was equipped with a rudimentary escape system, designed for use by one person at a time. Four men made it to the surface, but the fifth panicked and opened the hatch too soon, rendering the system inoperable. The ninety-nine men left on board suffocated. When 'Thetis' was salvaged three months later, the No 5 tube outer door was found open, and a check-valve which should have indicated to the crew that the tube was full of water was blocked by splatters of paint. A wave of negligence claims was brought against the Royal Navy, the builders, and subcontractors, and Sellers was instruced for Cammell Laird. The litigation first came before the Lords in Duncan v Cammell Laird [1942] AC 625, an important decision on public interest privilege, in which the House held that the Admiralty was entitled on national security grounds to withhold production of documents relating to the design and construction of 'Thetis'. This made the already difficult task of determining what happened even more challenging, and in Woods v Duncan [1946] AC 383, the Lords held that the sinking was unexplained, and that there was insufficient evidence to justify a finding that either Sellers' clients or anyone else had been negligent.
Twice-sunk submarine. After being salvaged from Liverpool Bay, HMS ‘Thetis’ was modified and brought back into service as HMS ‘Thunderbolt’ (bottom). The boat saw action in the Atlantic and the Mediterranean in the Second World War, and was sunk with all hands off Sicily in 1943.
Notwithstanding his lack of criminal expertise, Sellers was appointed Recorder of Bolton in 1938. During the Second World War, he enlisted in the Home Guard and chaired the International Lawyers' Group, an organisation of British, Allied, and refugee lawyers and law students established with the objective of "spreading knowledge of the effects of Nazi law on the democratic legal systems of the countries conquered by the German army". In 1945, he made a second attempt to enter Parliament, sixteen years after the first, as Liberal candidate for Hendon North. He again finished third out of three.
Sellers was made a King's Bench Judge in February 1946, a fortnight before the Lords delivered judgment in Woods v Duncan. He replaced Cyril Asquith, son of the late Liberal Prime Minister Herbert Asquith, who had been promoted to the Court of Appeal. The legal press welcomed the appointment with a restrained enthusiasm, with the The 'Law Journal' mentioning Sellers' popularity with the legal profession and his "very substantial common law and commercial practice". Sellers began his judicial career sitting on criminal appeals in London and trying personal injuries claims by dock workers on Circuit in his native Liverpool. But, by early 1948, he was hearing charterparty cases, and, from then onwards, Commercial Court actions formed a regular part of his reported caseload, although never a majority.
In Royal Greek Government v Minister Of Transport [1949] 1 KB 7, Sellers held (and the Court of Appeal agreed) that "deficiency of men" in a typical timecharter off-hire clause was confined to numerical deficiency, and did not cover a case where the crew was complete but refused to work: in response, charterers began to insist that "or default" should be added to the clause. In Regazzoni v Sethia [1956] 2 WLR 204, the parties to an English law contract for the sale of Indian jute bags planned to send the bags to South Africa, in breach of Indian export legislation. Sellers dismissed the buyer's claim for damages for non-delivery on the grounds that that the English Courts will not enforce a contract if performance would involve the doing in a friendly state of acts contrary to that state's law. He was upheld in both the Court of Appeal and the House of Lords. Sellers grappled with the impact on charterparties of the Chinese civil war between the nationalists and the communists in both Atlantic Maritime v Gibbon [1953] 2 WLR 725 and Luigi Monta v Cechofracht [1956] 2 QB 552. He was a member of the Divisional Court which dismissed future Commercial Judge Cyril Salmon's attempt to win compensation for the family firm after its flagship tearoom on Oxford Street was converted into an air raid shelter during the War: J Lyons v Home Secretay [1950] 1 KB 531. Of altogether more interest to the general public, he was also on the panel of the Court of Criminal Appeal which rejected Timothy Evans's appeal on a point of law in the 10 Rillington Place case: R v Evans [1950] 1 All ER 610.
While Sellers was clearly at home in the Commercial Court, other aspects of post-war judicial life were less convivial. In particular, High Court Judges' gross pay had barely changed for decades (aside from some tinkering with the tax treatment), while their net earnings had steadily declined in consequence of increases in the cost of living and the ever-upwards trajectory of taxation. In 1953, Sellers staged something a mini-protest. He submitted a claim for reimbursement of the cost of his daily taxi, on the grounds that he needed to use private transport to take papers to and from Court so that he could work on them at home. His timing was poor: the Lord Chancellor's Department had been in delicate negotiations with the Treasury, and a Bill to increase judicial pay was about to be introduced in Parliament (it was passed in 1954). Sellers was told firmly to pay his own fare. This indiscretion, and perhaps a perception that he was rather a narrow specialist, may partly explain why it took Sellers eleven years to reach the Court of Appeal, nearly twice as long as Morris. But promotion eventually came in early 1957. The 'Solicitors' Journal' thought that Sellers well deserved it "on account of the soundness of his judgment". The compliment was fully justified, for Sellers's first instance decisions were seldom overturned on appeal.
Sellers was expected to take on a wider variety of work in the Court of Appeal than at first instance, and he sat on appeals involving company law, divorce, employment, landlord and tenant, real property, tax, trusts, and wills and succession. But there were a good number of insurance, sale, and shipping cases too, including The Vancouver Strikes Cases [1961] 1 Lloyd's Rep 385, in which the argument before the Court of Appeal lasted a fortnight, an extraordinary time by modern standards: the House of Lords agreed that charterers were not obliged to re-nominate after loading of their chosen cargo was prevented by a strike ([1963] AC 691). The 'Suisse Atlantique' [1965] 1 Lloyd's Rep 533 stared out as a dispute about the construction of an exemption clause but developed into a leading case on "fundamental breach", while Tsakiroglou v Noblee Thorn [1960] 2 QB 318 (upheld in the Lords [1962] AC 93), one of the "Suez Canal cases", was significant in the context of frustration of contracts.
Sellers' conclusion in The 'Saxon Star' [1957] 2 QB 233 that a "Clause Paramount" referring to "this bill of lading" could not effectively be incorporated into a charterparty was overruled by the Lords: [1959] AC 133. But his statement of the law on safe ports in The 'Eastern City' [1958] 2 Lloyd's 127 fared rather better: endorsed by the House of Lords in The 'Evia' (No 2) [1983] 1 AC 736 and the Supreme Court in The 'Ocean Victory' [2017] 1 WLR 1793, it achieved definitive status. (In another example of their parallel paths, Sellers partly based his formulation on Morris's judgment in The 'Stork' [1955] 2 QB 105.) Sellers was also a member of the Court of Appeal which decided The 'Hong Kong Fir' [1962] 2 QB 26, although his contribution there was rather overshadowed by fellow former Commercial Court Judge Kenneth Diplock's re-statement of the law of the classification of contract terms.
Significant appeals outside the commercial sphere included Hanak v Green [1958] 2 QB 9, an important restatement of the law of equitable set-off; Quinn v Burch [1966] 2 QB 370 on when a plaintiff's own unreasonable reaction to the defendant's breach of duty may break the chain of causation in tort; and Anisminic v Foreign Compensation Commission [1968] 2 QB 862, a landmark case in the developing field of public law (the House of Lords overruled the Court of Appeal's decision that a statutory provision which purported to oust judicial review was effective: but John Morris, by then Lord Morris of Borth-y-Gest, dissented and sided with Sellers' view).
Sellers had a low press and public profile even by the standards of Commercial Judges. His retirement in early 1968, just before his 75th birthday and after twenty-two years in post, was marked by only a passing mention in The 'Times'. His death a little over a decade later was not thought to merit even that: the paper did not give Sellers an obituary, and he has no entry in the Dictionary of National Biography. But he did attract some attention in the early 1970's by appearing, alongside former Commercial Court colleague Patrick Devlin and retired Law Lord Cyril Radcliffe, in a late-night Thames Television programme which promised "to make it appear to the public that Judges were human and understood very well the problems of ordinary people".
In retirement, Sellers sat a handful of times as an additional Judge in the Court of Appeal and in a few Privy Council cases, delivering his final reported judgment in 1970. He continued to attend Northern Circuit dinners in the Inns of Court (alongside John Morris), suggesting that he retained to the end the cheery and outgoing disposition which had inspired his men on the Western Front more than half a century before. He presumably also took the opportunity to play more golf: he had been Captain of the Bar Golfing Society in 1961, a position which had previously been held by his Commercial Court predecessors Shearman, Scrutton, and Atkin.
Frederic Aked Sellers died in March 1979.