PHILIP THORMAN, and the class of similarly situated persons who worked aboard the factory trawlers managed by the in personam defendants v. American Seafoods Company, et al.

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 sixmonth
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 believe 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 American
Seafoods owed him a fiduciary duty, as passive concealment
is insufficient for a court to grant equitable tolling
"unless the defendant had a fiduciary duty to disclose information
to the plaintiff." Conmar Corp. v. Mitsui & Co.
(U.S.A.), 858 F.2d 499, 505 (9th Cir. 1988). We hold that, as
a matter of law, Thorman has failed to establish that American
Seafoods engaged in affirmative conduct to conceal the
underlying claims. Nor does our precedent support the imposition
of a fiduciary duty on American Seafoods to disclose its
precise methods for estimating the value of the catch.

FACTUAL AND PROCEDURAL BACKGROUND

Thorman worked as an on-board fish processor for American
Seafoods for several seasons between 1996 and 2000.1
Under the crew member agreements executed for each trip,
American Seafoods agreed to calculate Thorman's wages
based on the quantity and value of the catch, a common compensation
method in the fishing industry. See, e.g., TCW Special
Credits v. Chloe Z Fishing Co., 129 F.3d 1330, 1331 (9th
Cir. 1997) (explaining that it is typical to compensate crew
members by multiplying their rate, which is based on "rank,
job classification, duties and ability," by the amount of fish
caught). After each trip, American Seafoods mailed Thorman
a paycheck along with a settlement sheet that listed how the
earnings had been calculated based on the contractual formula.

Thorman's claims hinge on the way in which American
Seafoods estimated the value of the catch. Under the contracts,
wages were based on American Seafoods' preseason
estimate of the sale prices rather than the post-season prices
that the catch actually fetched. American Seafoods multiplied
this predetermined estimate - termed in the contracts as the
"posted sales price" or "posted price" of fish products - by
each crew member's share to determine individual compensation for the trip. Thorman argues that American Seafoods did
not implement the contracts in good faith because it underestimated
the gross prices it expected to receive from selling the
fish and reduced those estimates by excessive deductions for
sale costs.

American Seafoods used two slightly different, but substantially
similar, compensation clauses during the period at issue:
The form used prior to the 1999 pollock B season ("Old Contract")
and the form used commencing with the 1999 pollock
B season ("New Contract").

The Old Contract provides, in part, as follows:
[American Seafoods] shall pay Crew Member a production
share. The total production share earned by
Crew Member shall be calculated by multiplying the
production share of __[2] by the posted sales price of
fish product(s) processed aboard the vessel. . . .
Crew Member understands that the posted prices
upon which compensation is based, is set at the sole
discretion of the Company. Actual final sales prices
may be greater or less than stated in the posted price
but will not alter or affect Crew Member's settlement
for the trip at any time.

The basic compensation scheme did not change under the
New Contract, but American Seafoods revised the compensation
clause to read as follows:

4.1 . . . Crew Member shall be paid __ share(s) for
each trip completed. . . .

4.2 The value of one share is calculated by totaling
the number of assigned shares of all the Crew Memtion for the trip. Thorman argues that American Seafoods did
not implement the contracts in good faith because it underestimated
the gross prices it expected to receive from selling the
fish and reduced those estimates by excessive deductions for
sale costs.

American Seafoods used two slightly different, but substantially
similar, compensation clauses during the period at issue:
The form used prior to the 1999 pollock B season ("Old Contract")
and the form used commencing with the 1999 pollock
B season ("New Contract").

The Old Contract provides, in part, as follows:
[American Seafoods] shall pay Crew Member a production
share. The total production share earned by
Crew Member shall be calculated by multiplying the
production share of __[2] by the posted sales price of
fish product(s) processed aboard the vessel. . . .

Crew Member understands that the posted prices
upon which compensation is based, is set at the sole
discretion of the Company. Actual final sales prices
may be greater or less than stated in the posted price
but will not alter or affect Crew Member's settlement
for the trip at any time.

The basic compensation scheme did not change under the
New Contract, but American Seafoods revised the compensation
clause to read as follows:

4.1 . . . Crew Member shall be paid __ share(s) for
each trip completed. . . .

4.2 The value of one share is calculated by totaling
the number of assigned shares of all the Crew Members working at the start of the trip and dividing that
sum into the crewshare pool. The total number of
assigned shares will be posted prior to the start of
each trip. . . . The posted price for products produced
on the vessels will be communicated to all vessels
prior to the start of each trip. The prices posted are
the company's good faith estimate of the market
price of products produced aboard the vessels with
deductions taken for costs of product shipment,
packaging supplies, additives and costs of fish purchases
if applicable.

4.3 Posted Prices are set at [American Seafoods']
sole discretion. Actual sales prices may be greater or
less than the posted prices.

Significantly, each contract included a "Time for Claims"
clause that limited claims arising out of the contract or the
employment relationship in general to six months after the
contract was completed or terminated. Although the final contract
at issue was completed in October 1999, Thorman did
not commence this lawsuit until October 2001 - well past the
six-month limit set forth both in the contracts and by statute
for in rem wage claims brought by crew members aboard fishing
vessels. See 46 U.S.C. § 10602(a).

Nonetheless, Thorman argues that the suit is timely because
it was brought within six months after American Seafoods
produced a Confidential Offering Memorandum in another
lawsuit, which he contends finally brought his claims to light.

The Offering Memorandum provides:

[The compensation structure] pays crew employees
based on the total production value of the vessel. In
an effort to provide crew members with more certainty
of income, the value of the vessel is computed
using expected market prices that the Company [i.e.,
American Seafoods Group LLC] posts on the vessels
prior to their departures. These prices are typically
slightly lower than expectations since the Company
ultimately assumes the burden of changing market
conditions with respect to the effect of prices on
crew compensation.

In his complaint, Thorman claims, "Until April 20, 2001,
[the date on which the Offering Memorandum was produced,]
defendants fraudulently concealed from plaintiffs their policy
of low-balling crew prices, thereby preventing plaintiffs from
discovering the causes of action asserted here."

The district court granted American Seafoods' motion for
summary judgment and dismissed Thorman's claim as timebarred.

The court concluded that Thorman failed to establish
fraudulent concealment as a matter of law as to all claims.
Alternatively, the district court determined that Thorman's
action under the New Contract was barred because he had
actual knowledge of the facts underlying his New Contract
claims prior to the release of the Offering Memorandum. The
court further held that American Seafoods did not owe Thorman
a fiduciary duty to disclose the methodology for setting
estimated prices.

ANALYSIS

We review the district court's grant of summary judgment
de novo, "determin[ing] whether the evidence, viewed in a
light most favorable to the nonmoving party, presents any
genuine issues of material fact and whether the district court
correctly applied the law." Seattle-First Nat'l Bank v. Conaway,
98 F.3d 1195, 1196 (9th Cir. 1996) (quoting Warren v.
City of Carlsbad, 58 F.3d 439, 441 (9th Cir. 1995)). Typically,
a district court's decision on equitable tolling is "reviewed
for an abuse of discretion, unless the facts are
undisputed, in which event the legal question is reviewed de
novo." Santa Maria v. Pac. Bell, 202 F.3d 1170, 1175 (9th
Cir. 2000); see also Jones v. Blanas, 393 F.3d 918, 926 (9th Cir. 2004) (same). Here, de novo review is proper both
because this case reaches us on review from a grant of summary
judgment and because the evidence on which Thorman
relies is undisputed.

I. NO FRAUDULENT CONCEALMENT

[1] Like other forms of equitable relief, fraudulent concealment
applies to suits in admiralty. Cf. Vaughan v. Atkinson,
369 U.S. 527, 530 (1962) ("Equity is no stranger in admiralty;
admiralty courts are, indeed, authorized to grant equitable
relief."). To establish fraudulent concealment,3 Thorman carries
the burden of proving that (1) American Seafoods "affirmatively
misled" him as to the operative facts that gave rise
to his claim, and (2) Thorman "had neither actual nor constructive
knowledge" of these operative facts despite his diligence
in trying to uncover them. Conmar, 858 F.2d at 502.

Even viewing the facts in the light most favorable to Thorman,
he fails to establish a genuine issue of material fact as
to whether American Seafoods affirmatively misled him such
that a reasonable person would believe that he did not have
a claim for relief. See id.

[2] Thorman primarily relies on the settlement sheets for
evidence of active concealment within the six-month limit,4
claiming that use of the word "value" on the sheets falsely
represented that the company used market value to pay the
crew. The evidence does not support this reading. In fact,
American Seafoods disclosed to Thorman the terms under
which he was to be paid: Thorman's contracts were clear on
their face that actual final sales prices may be higher or lower
than the prices posted on the ship and that the "posted prices"
were determined by American Seafoods in its "sole discretion."
Thorman agreed in his deposition that he understood
American Seafoods was committed to calculating wages
based on the prices posted on the vessel during the voyage,
and American Seafoods used these prices. Further, Thorman
offers no evidence that American Seafoods made any representations
to him that the amounts under the "value" column
reflected the actual market value at the time of sale. Thorman's
notion that a precise fair market value, rather than an
estimated value, is the bellwether for the contracts finds no
support in the record.

[3] Nor does testimony given in prior litigation constitute
"affirmative conduct upon the part of [American Seafoods]
which would, under the circumstances of the case, lead a reasonable
person to believe that he did not have a claim for
relief." Rutledge v. Boston Woven Hose & Rubber Co., 576
F.2d 248, 250 (9th Cir. 1978). Significantly, Thorman points
to the testimony of Chris McReynolds, a vice president for
American Seafoods. That testimony from a prior lawsuit did
not take place until April 30, 1999 - well past the six-month
claim period for all trips at issue except the final one. Turning
to the substance of his testimony, McReynolds stated that
prior to each season, "I look into my crystal ball, take a look
at what happened in the past, look at what the upcoming market
condition is, and then try to prepare what I think the market
price is going to be . . . ." He further explained that the
company tried to estimate prices "generally right": "The market
goes up, market goes down: we all benefit or get penalized
one way or another." These isolated, equivocal statements
made after the time limitation expired hardly create a genuine
issue of material fact that American Seafoods affirmatively
prevented Thorman from discovering claims arising out of the
final trip at issue. Indeed, McReynolds's explanation is nothing
more than a recitation of the contract terms.

Thorman's reliance on the testimony of William R. Stokes,
president of an affiliate of American Seafoods, is similarly
misplaced. Taken in March 1998, the testimony has the potential
to toll only claims arising out of Thorman's last trip in
1997. Fatal to his claim, Thorman has not identified any statements
made in the deposition that are tantamount to concealment
of his claims. Like McReynolds, Stokes simply
confirmed what was clear in the contract. More problematic
for Thorman is the requirement to "establish that [his] failure
to have notice of [his] claim was the result of affirmative conduct
by the defendant." Conmar, 858 F.2d at 505 (emphasis
added). Although Stokes's employer was an affiliate of American
Seafoods, at the time of the deposition, Stokes was not
employed by American Seafoods. Nor was Stokes testifying
on behalf of American Seafoods, which was not even a party
to the litigation. In light of this tangential connection to
American Seafoods, Stokes's testimony cannot serve as affirmative
conduct on the part of American Seafoods for purposes
of the fraudulent concealment analysis.

[4] Finally, Thorman's contention that American Seafoods
made no effort to describe how it set posted prices and kept
secret its actual sales prices and costs does not rescue his
fraudulent concealment claim because the defendants' "silence
or passive conduct does not constitute fraudulent concealment." Volk, 816 F.2d at 1416; see also Leong v. Potter,
347 F.3d 1117, 1123 (9th Cir. 2003) ("Equitable estoppel
focuses on the defendant's wrongful actions preventing the
plaintiff from asserting his claim."); Grimmett v. Brown, 75
F.3d 506, 514 (9th Cir. 1996) ("The doctrine of fraudulent
concealment is invoked only if the plaintiff both pleads and
proves that the defendant actively misled her . . . ." ). Merely
keeping someone in the dark is not the same as affirmatively
misleading him. Cf. Santa Maria, 202 F.3d at 1176
("Equitable estoppel focuses primarily on the actions taken by
the defendant in preventing a plaintiff from filing suit . . . .")
Indeed, Thorman's fraudulent concealment claim is all the
more curious because he acknowledged that he understood his
compensation was not determined by the catch's market
value. And, when asked at his deposition whether anyone at
American Seafoods made any representations to him that it
used its best estimates of the fair market value in setting
posted prices, Thorman replied, "No." Cf. Volk, 816 F.2d at
1416 ("Appellants do not present any facts indicating an affirmative
effort on the part of any appellee to mislead them or
to conceal the fraud."). Thorman further stated his understanding
that, under the contracts, he needed to bring any
claims within six months of the end of the employment period
at issue.

[5] We therefore agree with the district court that the settlement
sheets and testimony given in prior litigation do not constitute
"affirmative conduct upon the part of [American
Seafoods] which would, under the circumstances of the case,
lead a reasonable person to believe that he did not have a
claim for relief." Id. at 1415 (quoting Gibson, 781 F.2d at
1345). Having failed to satisfy this critical component of his
claim, Thorman has not established fraudulent concealment as
a matter of law. We need not reach the issue whether Thorman's
claims also fail because he did not establish that he
"had neither actual nor constructive knowledge of the facts
giving rise to [his] claim despite [his] diligence in trying to
uncover those facts." Conmar, 858 F.2d at 502.

II. NO FIDUCIARY DUTY

[6] The principle that passive concealment is insufficient
for a court to grant equitable tolling under the doctrine of
fraudulent concealment bears one caveat - "unless the defendant
had a fiduciary duty to disclose information to the plaintiff."
Id. at 505; see also Rutledge, 576 F.2d at 250 ("Silence
or passive conduct of the defendant is not deemed fraudulent,
unless the relationship of the parties imposes a duty upon the
defendant to make disclosure."). Thus, presuming without
deciding that the facts here support passive concealment,
Thorman can prevail only if American Seafoods owed him a
fiduciary duty to disclose its internal pricing/accounting methodologies.
Despite a "long line of cases that describe seamen as
‘wards of the court' needing special protections from potentially
overreaching ship owners," Fuller v. Golden Age Fisheries,
14 F.3d 1405, 1408 (9th Cir. 1994), the scope of these
special protections is not unlimited and nothing supports
Thorman's effort to invoke a fiduciary duty that requires
American Seafoods to disclose its specific pricing methodology.

[7] Notably, we reserve our highest scrutiny for agreements
under which a seaman releases the vessel owner of liability
because of the understandable concern that such releases may
leave the seamen devoid of legal redress. As the Supreme
Court explained in a case involving a seaman's release, "The
analogy . . . between seamen's contracts and those of fiduciaries
and beneficiaries remains, under the prevailing rule
treating seamen as wards of admiralty, a close one." Garrett
v. Moore-McCormack Co., 317 U.S. 239, 247 (1942). In Garrett,
the seaman released the shipowner of all responsibility
after he was injured by a blow from the ship's hatch cover
while at sea. Id. at 240-41. Questioning the conditions under
which the release was given, the Court held that "the burden
is upon one who sets up a seaman's release to show that it
was executed freely, without deception or coercion, and that
it was made by the seaman with full understanding of his
rights." Id. at 248. Following this lead, courts have applied
heightened scrutiny to cases involving seamen's releases. See,
e.g., Orsini v. O/S Seabrooke O.N., 247 F.3d 953, 958-59 (9th
Cir. 2001) ("Applicable law requires that we scrutinize the
validity of a seaman's release under principles of admiralty
law analogous to the duty owed by a fiduciary to a beneficiary
. . . ."). But see Resner v. Arctic Orion Fisheries, 83 F.3d 271,
274 (9th Cir. 1996) (explaining in a seaman's release case that
"Arctic Orion was not obliged to explain the merits of [Resner's]
claim to him or to send him to a lawyer").

[8] Courts have also recognized the perils of working
aboard ships: "The physical conditions under which the seaman
labors are extremely hazardous. He works on an unstable
and often slippery surface, subject to extreme sea and weather
conditions." Cal. Home Brands, Inc. v. Ferreira, 871 F.2d
830, 837 (9th Cir. 1989). And, in light of these perils, Congress
created for seamen a statutory right of action for negligence
against employers. See id. at 833 (noting passage of the
Jones Act, 46 U.S.C. § 688, in 1920). Courts have described
the "peculiar conditions" of seamen's employment as the
basis for such "extraordinary remedies being made available
to those who accept this calling." Perkins v. Am. Elec. Power
Fuel Supply, Inc., 246 F.3d 593, 597-98 (6th Cir. 2001) (citing
Paul v. United States, 205 F.2d 38, 42 (3rd Cir. 1953));
see also Chandris, Inc. v. Latsis, 515 U.S. 347, 354-55 (1995)
(explaining that the legal regime governing maritime injuries
grew out of concerns that seamen "are by the peculiarity of
their lives liable to sudden sickness from change of climate,
exposure to perils, and exhausting labour") (quoting Harden
v. Gordon, 11 F. Cas. 480, 485, 483 (No. 6,047) (CC Me.
1823)). The threats to a seaman's well-being extend beyond
the natural perils of working on the high seas to include "the

rigorous discipline of the sea" under which "complaints to
superior officers of unsafe working conditions not infrequently
provoke harsh treatment." Socony-Vacuum Oil Co. v.
Smith, 305 U.S. 424, 430 (1939). In short, "seamen are the
wards of the admiralty . . . because of the special circumstances
attending their calling." Id. at 431.

Here, we are not faced with a release or other claim arising
from a physical injury or the perils of the sea, but rather an
employment contract with economic terms that Thorman was
free to accept or reject. Thorman argues that "[t]here is no
basis for retreating from the Garrett court's holding that seamen
are owed a fiduciary-like duty by their employers." Quite
the opposite of "retreating," Thorman asks us to expand Garrett
not only to encompass a full-blown fiduciary relationship
- as opposed to "fiduciary-like" - but also to envelop aspects
of the seaman-vessel owner relationship far beyond the
release context. Under Thorman's theory, vessel owners
would be required to open their financial records to the seamen
and offer up a market and accounting analysis that would
amount to a mini-Securities and Exchange Commission filing.

[9] We do not read the "wards of the vessel" doctrine as
extending to detailed financial disclosure under the employment
contract, particularly where, as here, the "posted price"
is disclosed, it is acknowledged that the "posted price" may
be higher or lower than the contract price, and the employer
undertakes a contractual obligation to make a "good faith estimate"
of market value. Put simply, no precedent supports
Thorman's effort to expand a seaman's rights in a release or
injury case to a fiduciary relationship that imposes an affirmative
burden on maritime employers to explain their precise
compensation methodology or to disclose their financial calculations
of "posted prices" versus market value of the catch.

Nor does precedent from the greater employment law context
support Thorman's argument, although we certainly recognize
that seamen are no ordinary employees. Cf. 19 Richard
A. Lord, Williston on Contracts § 54.18 (4th ed. 2003)
(explaining that employers owe employees "two basic
duties": (1) compensation in accordance with their agreement
and indemnification for certain losses and (2) a safe workplace).

Instead, fiduciary duties in the employer-employee
relationship are limited to discrete, well-defined obligations.
We have held, for example, that an employer acts in a fiduciary
capacity when so required by federal law. See, e.g., Bins
v. Exxon Co., U.S.A., 220 F.3d 1042, 1047-48 (9th Cir. 2000)
(en banc) (discussing fiduciary duties under the Employee
Retirement Income Security Act of 1974, 29 U.S.C. § 1001,
et seq.). And, in certain circumstances, fiduciary-like duties
run in the opposite direction with, for instance, the employee
owing a duty of loyalty to the employer. See, e.g., Eckard
Brandes, Inc. v. Riley, 338 F.3d 1082, 1085 (9th Cir. 2003)
("It is clear under Hawaii law that employees owe their
employer a duty of loyalty."). Thorman does not cite, nor
have we uncovered, any precedent requiring vessel owners to
detail their internal wage calculations to employees especially
where, as is the case here, the employee has never asked and
the confines of the calculated wages are set out in a contract.

Given the centuries of admiralty cases - including numerous
cases involving seamen's wage claims, see, e.g., Oliver v.
Alexander, 31 U.S. 143, 145 (1832) ("The present is a case of
seamen's wages, in which there is necessarily a several and
distinct contract with each seaman, for the voyage, at his own
rate of wages . . . ."); Putnam v. Lower, 236 F.2d 561, 570
(9th Cir. 1956) ("The jurisdiction of courts of admiralty over
the wage claims of seamen is anciently established.") - the
dearth of cases supporting Thorman's call for a newly minted
fiduciary duty is telling. Unlike with trustee-beneficiary, see,
e.g., N.L.R.B. v. Amax Coal Co., 453 U.S. 322, 329 (1981)
("[A] trustee bears an unwavering duty of complete loyalty to
the beneficiary of the trust, to the exclusion of the interests of
all other parties . . . ."), corporation-shareholder, see, e.g.,
United States v. Rodrigues, 229 F.3d 842, 846 (9th Cir. 2000)
("[A] corporate fiduciary, such as a director, officer, or controlling shareholder, may not usurp the corporation's business
opportunities without proper consent."), and other typical
fiduciary relationships in which there are countless cases discussing
the duties imposed by common law, there is a legal
black hole with regard to any requirement that maritime
employers disclose their precise compensation methodology
to seamen.

Finally, we view as significant the fact that both the courts
and Congress have recognized time limits on seamen's wage
claims and that Congress has set up a statutory scheme to protect
seamen through written contracts. See Fuller, 14 F.3d at
1409 (upholding six-month limits on claims in similar fishing
contracts and noting that the limitation period "was not unfair
or unreasonable."); 46 U.S.C. § 10602(a) (six-month limitation
on in rem actions). As we have explained, "the statutory
scheme [requiring written contracts for fishermen] also benefits
the vigilant employer. A fishing vessel that complies with
the statutory requirements is protected by a six-month statute
of limitations on in rem claims. This benefit is the quid pro
quo for giving the seafarer a written contract." Harper v. U.S.
Seafoods LP, 278 F.3d 971, 977 (9th Cir. 2002) (internal citations
omitted). Congress further legislated that when an in
rem action is brought, the "[vessel] owner shall produce an
accounting of the sale and division of proceeds under the
[fisherman's wage] agreement." 46 U.S.C. § 10602(b)(1).

This accounting requirement is not an implied affirmative
duty owed to seamen, but rather a statutory remedy that must
be requested by a seaman as part of a legal action. Our decision
today does nothing to undermine these statutory and contractual
claims against the vessel or its owner, nor do we in
any way dilute the well-established duties owed to seamen as
"wards of admiralty."

[10] Considering these bounds placed on the solicitude
owed by courts to seamen, we decline to impose an unprecedented
fiduciary duty on vessel owners to disclose their internal
pricing/accounting methodologies. Nothing in our
precedent or the legislative scheme protecting seamen supports
such an extension. Although we reject the imposition of
a fiduciary duty in this context, we underscore that vessel
owners remain bound by the general duty "to act in good faith
and to deal fairly in performing and enforcing the contract[
s]." Flores, 335 F.3d at 913. Whether American Seafoods
did so here, however, goes to the merits of the case, not to the
threshold time-bar issue before us in this appeal.