Thorman

Philip Thorman, on behalf of a class of similarly situated crew members, appeals the district court’s grant of summary judgment in favor of American Seafoods Company and American Seafoods Company LLC (in personam defendants) as well as various vessels owned by these companies (in rem defendants) (the defendants collectively, “American Seafoods”). The district court concluded that Thorman’s claims were time-barred because the contractual six-month limit on disputes had expired. We agree and affirm the district court’s summary judgment order.

Crucial to our decision is that the merits of Thorman’s claims are not before us. Instead, we are faced with the threshold issue of whether Thorman has overcome the six-month time-bar to his claims. To surmount this preliminary hurdle, he must establish either fraudulent concealment, which requires proof of “affirmative conduct upon the part of [American Seafoods] which would, under the circumstances of the case, lead a reasonable person to be *1092 lieve that he did not have a claim for relief,” Volk v. D.A. Davidson & Co., 816 F.2d 1406, 1415 (9th Cir.1987) (quoting Gibson v. United States, 781 F.2d 1334, 1345 (9th Cir.1986)), or that…

concurring.

I agree that Thorman’s claims are time-barred. He has neither proven fraudulent concealment nor established a fiduciary duty on the part of American Seafoods. The result may have been different if Thorman had adequately demonstrated that American Seafoods overstated its sales expenses in bad faith when it calculated the value of the fish the seamen caught. While ship owners such as American Seafoods may not owe a fiduciary duty to their seamen to disclose their internal pricing methodologies, they certainly owe a duty “to act in good faith and to deal fairly in performing and enforcing contract[s].” Flores v. American Seafoods Co., 335 F.3d 904, 913 (9th Cir.2003).

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

PHILIP THORMAN, and the class of  similarly situated persons who worked aboard the factory trawlers managed by the in personam defendants, Plaintiff-Appellant, v.

AMERICAN SEAFOODS COMPANY;

AMERICAN SEAFOODS COMPANY

LLC, In Personam; OCEAN ROVER No. 03-36012

F/T; AMERICAN TRIUMPH F/T;

NORTHERN EAGLE F/T; NORTHERN  D.C. No.

CV-01-01684-TSZ

HAWK F/T; NORTHERN JAEGER F/T;

OPINION

AMERICAN DYNASTY F/T; AMERICAN

EXPRESS F/T; VICTORIA ANN F/V;

CHRISTINA ANN F/T; KATIE ANN

F/T; PACIFIC SCOUT F/V, and other vessels managed by the in personam defendants, their engines, tackle, equipment, appurtenances, freights, and cargo, In Rem, Defendants-Appellees.  Appeal from the United States District Court for the Western District of Washington Thomas S. Zilly, District Judge, Presiding

Argued and Submitted June 7, 2005—Seattle, Washington

Filed September 1, 2005

12057 12058 THORMAN v. AMERICAN SEAFOODS CO. Before: Warren J. Ferguson, Robert R. Beezer, and M. Margaret McKeown, Circuit Judges.

Opinion by Judge McKeown; Concurrence by Judge Ferguson 12060 …