Fittingly for someone who devoted much of his professional life to insurance disputes, Frank Douglas MacKinnon had family connections to Lloyd's of London. His father, Benjamin Mackinnon (as an adult, Frank capitalised the "k" in the surname) was a Lloyd's underwriter, and his brother, Percy, followed Benjamin into the market and was several times Chairman of Lloyd's. But Frank chose a different career, and, after studying classics at Trinity College, Oxford he was called to the Bar by Inner Temple in 1897.
MacKinnon's pupil master was T.E. Scrutton. By the late 1890's, Scrutton was practising almost exclusively in the Commercial Court, and he and his great rival J.A. Hamilton were the dominant juniors at the commercial Bar. MacKinnon therefore acquired an excellent education in commercial litigation and in the practice and procedure of the Commercial Court.
A potential disadvantage of pupillage with Scrutton was that the tight focus of the great man's practice meant that a pupil did not learn much, if anything, beyond the boundaries of commercial work. But this did not matter for MacKinnon. Scrutton thought sufficiently highly of his pupil that he invited MacKinnon to join him in Chambers in Temple Gardens, where MacKinnon remained for the whole of his career at the Bar. With his reputation enhanced by this public sign of approval from Scrutton, and his personal connections to the world's leading insurance market, MacKinnon quickly picked up commercial work, making his first appearances in the law reports in 1900.
MacKinnon was also a beneficiary of good timing. In 1901, Scrutton was appointed King's Counsel. Under the arcane rules which governed the Bar at the time, no KC could appear in Court without a junior (although most commercial cases were sufficiently substantial and complex to warrant two counsel in any event). MacKinnon became a junior of choice for Scrutton, and the two appeared in dozens of reported cases in the nine years before Scrutton went on the Bench. As a result, MacKinnon appeared in one or two cases about copyright, which had been Scrutton's early speciality, before he had turned to shipping and insurance. But that was a rare departure from the commercial litigation on which MacKinnon built his practice. MacKinnon also co-edited seven editions of 'Scrutton On Charterparties' with his former pupil master, before Scrutton abandoned his own book in disgust at the passing of The Carriage of Goods By Sea Act 1924 (MacKinnon tactfully resigned his editorship at the same time).
When he was not working with Scrutton, MacKinnon was led by all of the other principal Commercial Court practitioners of the early 20th Century, including Hamilton, T.G. Carver, Clement Bailhache, Joseph Walton, Arthur Greer, and Adair Roche. Strikingly, in The 'Leitrim' [1902] P 256, a general average case before John Gorrell Barnes in the Admiralty Court, he appeared with both Scrutton and Hamilton: not surprisingly, this high-powered counsel team won the case. Other memorable cases from this phase of MacKinnon's career included MacBeth v Maritime Insurance [1908] AC 144, in which the House of Lords confirmed that the test for whether an insured ship has become a constructive total loss is whether or not a prudent insured would repair the vessel, and Clemens Horst v Biddell [1912] AC 18, which established that a CIF buyer is obliged to pay against documents even if the contract does not say so in terms.
To judge from the law reports, MacKinnon rarely argued cases on his own during his first decade in practice. But in 1909-1910, the departures of Hamilton and Scrutton to the Bench in quick succession gave other commercial practitioners the opportunity to scoop up some of the practices which they left behind, and MacKinnon began to make more frequent Court outings alone. In 1914, he somehow ended up unsuccessfully defending a tort and breach of contract claim against a cinema which had forcibly ejected a paying customer in the middle of a performance (Hurst v Picture Theatres Ltd [1915] 1 KB 1). But with such a flourishing commercial practice, MacKinnon felt no incentive to broaden his range. Unusually, he never joined a Circuit, which would have enabled him to argue cases away from London. Instead, he confined his legal world to the capital, almost always in the Commercial Court, although he occasionally ventured into the Admiralty. In his whole career at the Bar MacKinnon only ever appeared in a handful of jury trials, and he never conducted a criminal case.
MacKinnon was appointed King's Counsel in 1914. Too old to serve in the Great War, he remained in London to argue about the legal effects of the war on commercial contracts in such cases as Tamplin v Anglo-Mexican [1916] 2 AC 397 and Bank Line v Capel [1919] AC 435. In Tamplin, the House of Lords held that a time charter had not been frustrated when the ship had been requisitioned for use as a troop carrier at the beginning of the Great War. But, by the time of the final appeal in Bank Line, early expectations that the War would be short were but a distant memory, and the Lords came to the opposite conclusion, on similar facts. MacKinnon was on the winning side in both cases. MacKinnon was one of those commercial practitioners who developed a Prize practice during the War, and he was instructed in a number of disputes about war insurance and ship requisition which were generated by the conflict. By 1918, MacKinnon was one of the leaders of the commercial Bar. The surge in commercial litigation in the years immediately after 1918 cemented his success. Overall, MacKinnon appeared in more than a hundred reported cases during his decade as leading counsel, including more than thirty in the House of Lords and Privy Council. Among them were Drughorn v Rederia Transatlantic [1919] AC 203, an important case on an undisclosed principal's title to sue (the Lords held that the fact that a charter named A as "charterer" did not preclude B from suing on the contract if A had acted as B's agent), and Les Affreteurs v Walford [1919] AC 801, on whether and how a third part could benefit under a contract (the Lords ruled that a term obliging the shipowner to pay commission to a broker who was not party to the charter could be enforced by the charterer as trustee for the broker). The 'Times' assessed MacKinnon's advocacy as being "of the painstaking and patient, rather than of the brilliant type". But pains and patience were exactly what major commercial litigation required.
During the Long Vacation of the summer of 1924, MacKinnon went on an extended hiking holiday in the Pyrenees. He returned in September to find that Clement Bailhache had died and Lord Chancellor Haldane wanted him to take Bailhache's place in the King's Bench. MacKinnon therefore gained the distinction of being the only High Court Judge appointed by the first Labour government, which held office for only ten months. MacKinnon was sworn into office wearing judicial robes borrowed from Montague Shearman, which were far too big for him. (He inherited Charles Darling's black cap before trying his first criminal cases. Having spent virtually his entire career in the Commercial Court, MacKinnon was unknown to the public, but the legal profession recognised his abilities, and his appointment was welcomed. The legal press understandably saw him as a like-for-like substitute for Bailhache, one commercial specialist replacing another, although The Law Journal tactfully suggested that he would not share Bailhache's tendency to make his mind up too quickly.
Although MacKinnon never practised on Circuit while at the Bar, he was enthusiastic about Circuit work when he became a Judge. Here, with attendants in train, he is on his way to Court in Aylesbury in 1928.
In the event, MacKinnon was a Judge of very different attitude to Bailhache. Whereas Bailhache actively disliked any work outside the Commercial Court, MacKinnon thoroughly enjoyed the travel, ceremony, and social engagements which came with judicial work on Circuit, notwithstanding that he had never had Circuit connections at the Bar. Lack of previous experience of criminal litigation did not prevent him from becoming a competent Judge in crime, and he did his share of time in the Court of Criminal Appeal. The vast majority of MacKinnon's reported first-instance decisions were in the Commercial Court, but he tried the occasional employment, landlord and tenant, and local government case. He also became the Judge of the Railway & Canal Commission.
As Commercial Judge, MacKinnon was brisk and business-like, quick to get to the point of a case, and inclined to deliver judgment immediately at the end of a hearing whenever possible. He was regarded as pleasant to appear before, humane and occasionally humorous, and with a terse but readable written style. MacKinnon's most prominent commercial case at first instance was perhaps Foscolo Mango v Stag Line (1930) 38 Lloyd's Rep 271 on the scope of the "reasonable deviation" exception in the Hague Rules. MacKinnon decided that shipowners were not entitled to rely on the exception when the Master ran the ship aground after changing course to drop off two dockyard engineers, and his conclusion (though not all of his reasoning) was endorsed by the House of Lords ([1932] AC 328).
MacKinnon was fifty three when he went on the Bench, the same age as Scrutton had been. But whereas Scrutton was elevated to the Court of Appeal after six years, it took MacKinnon more than twice as long to get there. It was said that one reason for this was that MacKinnon was ambivalent about the promotion, because he enjoyed going Circuit so much (the Lords Justice of Appeal did not sit outside London). But the difference in career velocity also reflected the obvious gap in judicial ability between the master and the pupil. Whereas Scrutton is remembered as one of the most outstanding of all common law jurists, MacKinnon fell distinctly short of establishing a reputation as a great Judge.
But then he would almost certainly have thought that becoming a great Judge was no very worthwhile ambition to harbour. The 'Times' thought that "great energy was foreign to his nature", and, while he made the law his living, he never made it his life. On the contrary, his real interests were cultural rather than legal. A devotee of 18th Century England, MacKinnon loved Georgian architecture (while hating almost everything Victorian) and admired Dr Johnson. MacKinnon himself aspired to be a man of letters, like his literary hero. He produced an annotated edition of Fanny Burney's novel 'Evelina' and was the author of 'On Circuit', a sometimes whimsical memoir of his travels as a King's Bench Judge, interspersed with thoughts on literature and architecture. He was always happy to deliver public lectures on his pet subjects, and was a regular and popular evening speaker at the Working Men's College, and adult education institution in London's Camden (the oldest of its kind in Europe, still in existence today). Not always one to wear his scholarship lightly, MacKinnon was prone to drop literary allusions into his judgments, in a way which looks rather laboured to modern eyes. His enthusiasm for times past sometimes generated an impression, not necessarily desirable in a Judge, of detachment from the modern world: he once proudly informed his Court that he did not own a radio, and that he never would.
Still, MacKinnon made a sufficiently good impression on the Bench that when, in 1938, Adair Roche's retirement was rapidly followed by Lord Maugham switching jobs to become Lord Chancellor, he was spoken of as a possible replacement Lord of Appeal in Ordinary. In the event, Commercial Court Judge Samuel Porter, MacKinnon's junior on the Bench by a decade, filled the common law vacancy, bypassing the Court of Appeal altogether, and MacKinnon saw out the rest of his career as a Lord Justice. He is remembered for devising the "officious bystander" (a judicial rival to Lord Bowen's "man on the Clapham omnibus") as a yardstick for the imposition of contract terms (Southern Foundries v Shirlaw [1939] 2 KB 206 and for deploying the homely analogy of a rowing boat to illuminate the essential difference between a voyage charter and a time charter (The 'Alresford' [1942] 2 KB 65). He was also member of the panel which determined the extent to which the Court of Appeal is bound by its own decisions in Bristol Aeroplane v Young [1944] 1 KB 719.
In The 'Greystoke Castle' [1945] P 10, MacKinnon agreed with his colleagues that a cargo owner who had had to pay a general average contribution after the defendant's vessel had negligently collided with the ship carrying the cargo was entitled to recover the amount of the contribution from the defendant in tort. This decision seemed contrary to the established rule that pure economic loss consequential on damage to someone else's property is not recoverable in negligence. But a House of Lords which included former Commercial Judges Samuel Porter and Adair Roche upheld the decision ([1947 AC 265), puzzling generations of law students. In 1940, MacKinnon won for himself a small place in legal history by becoming the first Lord Justice to preside over a Court of Appeal hearing convened in an air raid shelter.
When he was not writing about olden days, MacKinnon also contributed notes on legal topics to The Law Quarterly Review. In addition to his contributions to 'Scrutton On Charterparties', participated in several of the International Conferences On Maritime Law which eventually produced (much to Scrutton's disapproval) the Hague Rules. Miscellaneous writings on the law, lawyers, and legal institutions were published as 'The Murder In The Temple & Other Holiday Tasks' and 'Inner Temple Papers'. He contributed to The Dictionary of National Biography entries on several Judges, including Hamilton and Scrutton. For less intellectual leisure activities, MacKinnon retained his enthusiasm for hiking.
The Blue Star Line’s ‘Almeda Star’, on which MacKinnon’s daughter, son-in-law, and granddaughter were killed during the Second World War.
On top of the distractions of his numerous extra-judicial activities, any professional ambitions which MacKinnon may have harboured were blunted later in life by personal disaster. In 1906, he married Frances Massey, and they had a son and a daughter. In January 1941, his daughter, son-in-law, and grandchild were among 360 people killed when the liner SS 'Almeda Star' was sunk by a U-Boat in the North Atlantic. MacKinnon told a friend that he had nothing left to live for, but that he would carry on working until he dropped. He did exactly that. On the morning of 22nd January 1946, Frank Douglas MacKinnon had a heart attack in Carey Street, on his way to the Royal Courts of Justice for the day's business. He died in hospital the next day.